November 16, 2018

NEW YORK — Secretary of Education Betsy DeVos issued a notice of proposed rulemaking related to Title IX and sexual assault on campus.

Louise Melling, American Civil Liberties Union deputy legal director, issued the following statement:

“The ACLU is committed to fair school disciplinary processes that uphold the rights of both parties in campus sexual assault and harassment cases. Secretary DeVos’s proposed rule issued today falls short of that standard. 

“The new rule preserves some important protections for respondents from the Department of Education’s 2001 guidance, such as a guarantee of an impartial investigator and the opportunity to present rebuttal evidence. It also ensures both parties equal rights to appeal and access to evidence.

“Yet the new rule inappropriately tips the scales in favor of the accused and against those who report sexual assault. And the proposed rule would let schools ignore their responsibility under Title IX to respond promptly and fairly to such complaints.”

The ACLU opposes the proposed rule because it allows schools to:

  • Use an improperly narrow definition of sexual harassment to limit when the school must investigate a claim, namely “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” This definition imports a high standard used for liability for money damages into determinations of appropriate school response in administrative proceedings. The standard for opening an investigation into an individual student’s complaint of harassment should not be as high as the standard for actually holding a school liable as an institution. All credible allegations of sexual harassment deserve an investigation;
  • Use a standard of proof in disciplinary proceedings that is higher than that used in civil litigation generally and that, without justification, favors the respondent over the complainant.  The ACLU favors a “preponderance of the evidence” standard that is equally fair to both the accused and the accuser, and is used in all other sexual harassment proceedings;
  • Require investigation only of complaints brought to specified officials, allowing schools to ignore complaints made to lower-level school employees whom those who experience sexual harassment or assault may know and trust.

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