“Is ruining lives your version of a back-to-school welcome?” Morgan McCaul, a survivor of sexual abuse by Larry Nassar, tweeted as news of the change broke on Wednesday evening.
“When we define policy about criminal sexual misconduct, it is imperative that we consider victims first,” she told the Detroit Free Press later. “Limiting the availability of justice for complainants is concerning and reckless, especially in today’s climate.”
The proposed changes — from federal Department of Education Secretary Betsy DeVos — would limit colleges to investigating those sex assaults that happen on campus. That means assaults that occur just off campus, in places like fraternity houses or off-campus housing, wouldn’t be investigated by colleges.
The changes — first reported by The New York Times — would narrow the definition of sexual harassment; allow schools to choose the legal standard they would use “preponderance of evidence” or “clear and convincing” evidence to find a student in violation; and let the accused and accuser cross-examine each other.
In doing the latter, DeVos and the federal government would be following the trend being set by a series of federal courts in the Midwest. The Free Press first reported that trend earlier this week.
The reshaping is focused in the U.S. 6th Circuit Court of Appeals and the courts that make up its district. There’s been a ruling by the appeals court and one by a federal court in Michigan shaping the movement. Another case is pending before the appeals court, while another case in a federal court based in Michigan is also pushing for the change. All the cases are federal cases, with arguments that the universities are violating the U.S. Constitution’s due process protections.
The courts are ruling that colleges must allow some sort of cross-examination between the accused and accuser in order to protect the due process rights of the accused.
“The federal government finally caught up to the 6th Circuit,” said KC Johnson, the co-author of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.”
“The two major points in the leaked draft — some form of cross-examination, Title IX requiring universities to treat both sides fairly — already are law in the circuit, at least for public universities.
“We’ve already seen schools (Michigan, plus MSU, Central Michigan and several others) willing to defy binding court precedent to retain victim-friendly policies. So I assume they’ll try to defy OCR as well.
“The major change would be in subsequent litigation. Now,’ schools can — in effect — say, ‘Maybe our policies are unfair but the federal government made us do it.’ Once these regs are in place, accused students will be able to say — in effect, ‘Your policies are unfair; why aren’t you doing what the federal government requires?’”
Johnson said there are court cases pending at 1st Circuit, involving the University of Massachusetts; the 4th Circuit, involving the University of Maryland; and the 7th Circuit, involving Purdue University that all touch on issues of whether a live hearing and cross-examination should be required.
The proposed regulations, which may be formally released in mid-September, also concentrate on beefing up the protection of those accused, a sharp change from the Obama administration, which changed rules to protect victims. DeVos suspended the Obama-era rules earlier this year.
The changes would also have the department’s Office for Civil Rights use a higher legal standard to determine whether a college violated Title IX.
“The lack of clear regulatory standards has contributed to processes that have not been fair to all parties involved, that have lacked appropriate procedural protections, and that have undermined confidence in the reliability of the outcomes of investigations of sexual-harassment allegations,” the draft says, according to The New York Times.
The change in philosophy drew sharp words from many who work with survivors.
Sage Carson, the manager of Know Your IX, a victim advocacy organization, said she was in the grocery store Wednesday night when she first heard of the change. She sunk to the ground, she told the Free Press, in shock.
“This is the most pro-school and pro-perpetrator moves since the creation of Title IX 45 years ago,” she said.
She was particularly concerned about limiting when universities will get involved based on the location of the assault.
“Where I’m assaulted does not change that I might have to be in a class with my assaulter,” she said, saying schools now can change class schedules and provide other supports to survivors.
She also said adding direct cross-examination was wrong.
“I dropped my case because I learned I was going to be questioned directly by the person who assaulted me with only a curtain separating us,” she said, adding she does think both sides should be able to submit questions to a third-party to ask of the other side if they are relevant to the case.
“This really seems to be aimed at taking the schools of the hook and making them not responsible for doing anything when an assault occurs.”
Other groups echoed those concerns.
“The #MeToo movement has changed the country and made clear that we need new institutional accountability to prevent and address sexual harassment and assault,” Fatima Goss Graves, president and CEO of the National Women’s Law Center, said in a statement. “The reports today indicate that Secretary DeVos and the Trump Administration, badly misreading the national mood, plan instead to give schools new leeway to dismiss the complaints of student survivors. Be clear: a movement will rise up to fight these attacks on the rights of students, the likes of which Secretary DeVos has not yet seen. She should reconsider whether she wants to go down this path.”
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