The way sexual assault and harassment cases are handled on campus could undergo significant changes if the rules proposed by the Trump Administration were to take effect.
President Trump’s Education Secretary, Betsy DeVos, unveiled her proposed policies last November, but could take a while to be implemented.
The Obama administration’s policies on sexual assault were just that—policies. DeVos intends to take her proposed rules through court to become law, which would make them harder in the future to replace., but that also means the policies could be held up in court for years.
The main differences between the current (Obama) policies and the proposed (Trump) policies are that Title IX investigations must feature a live hearing with both parties present and that cross-examination will be allowed.
However, schools can choose how they want to conduct these hearings.
They can be held in a courtroom-style fashion or even videoconferenced. Critics of this policy change argue that this process could cause defendants even more emotional damage, such as if a defendant’s attorneys are allowed to question the accuser.
Jeannie Suk Gersen, a professor at Harvard University, wrote in The New Yorker that Harvard’s current hearing policy allows both sides to write questions to ask the other side, and a neutral decision-maker asks those questions in a non-harassing way.
The language that defines a “hostile environment” will also change. A 1986 Supreme Court ruling defines a hostile environment as “conduct of a sexual nature” that is “sufficiently severe or pervasive to alter the conditions” of the opportunity at stake.
DeVos’ policy would change the language from “severe or pervasive” to “severe, pervasive and objectively offensive.” This alone would heighten the standard for charging a student, organization or institution under Title IX.
The way sexual harassment and assault are investigated would also be changed.
WVU’s current model uses a single investigator that assesses both sides, then reports their findings to the University’s Title IX Coordinator. The Coordinator reviews the evidence found by the investigator then makes a decision whether any inappropriate conduct defined by Title IX occured.
The accused and the defendant then have five days to respond to the Coordinator’s findings. Then a final decision will be made.
DeVos’ investigation model doesn’t much differ from WVU’s. Her policy dumps the investigator-only model, which allows the investigator to act as the final decision maker, which some universities currently use.
The biggest change is that DeVos’ policy allows schools to ditch the “preponderance of evidence” standard, which the Obama Administration required. “Preponderance” means fault greater than 50 percent. Schools can now choose to use a “clear and convincing evidence” standard to charge someone with a Title IX violation.
DeVos’ policy also allows institutions the choice to not investigate Title IX allegations committed outside educational programs or activities. So, if a sexual assault allegation arises from a downtown establishment, independent fraternity or in off-campus housing, a school can choose not to investigate.