Students accused of sexual misconduct would have greater rights to defend themselves in college disciplinary inquiries under draft regulations circulating within the Education Department, officials familiar with the proposal said Wednesday.
The Trump administration plan also would set a more stringent threshold for the types of allegations colleges should investigate, establishing a definition of sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive” that it denies access to an educational program, according to two government officials who have seen the document or been briefed on it. The definition draws on Supreme Court precedent.
During the Obama administration, the department had embraced a broad view of sexual harassment as “unwelcome conduct of a sexual nature,” including sexual advances, requests for sexual favors, and other verbal, nonverbal and physical conduct.
The draft proposal for enforcement of the 1972 law called Title IX, which prohibits sex discrimination in schools that receive federal funding, was first reported Wednesday by the New York Times.
The department declined to comment on a proposal that is likely to have significant repercussions for how colleges and universities handle allegations of sexual assault.
“We are in the midst of a deliberative process,” department spokeswoman Elizabeth Hill wrote in an email Wednesday evening. She said reports of emerging details about the proposal are “premature and speculative and therefore we have no comment.”
Education Secretary Betsy DeVos had signaled in September 2017 a major shift on the issue when she rescinded guidance that officials under President Barack Obama had provided colleges on Title IX and sexual violence.
She pledged at the time to replace what she called a “failed system” of campus sexual assault enforcement, to ensure fairness for accusers and the accused. DeVos also said that the Obama administration had “weaponized” its civil rights enforcement instead of working with schools.
The Obama guidance had told colleges to use a standard known as “preponderance of the evidence,” common in civil law, when deciding whether a person violated rules against sexual violence.
Advocates for survivors say that adopting the preponderance standard was a key step to secure educational rights of sexual violence victims. But critics said that the standard too often allows accused students to be expelled or suspended on flimsy evidence, in proceedings that occur behind closed doors.
The Trump administration said in an interim statement in 2017 that colleges could choose to use the preponderance standard or a higher threshold known as “clear and convincing evidence.”
Exactly how the department will address standards of evidence will be a key issue in formulating new regulations. Neither standard is as strong as the “beyond a reasonable doubt” threshold for a criminal conviction.
The two government officials, who spoke on the condition of anonymity because they were not authorized to discuss the draft publicly, told The Washington Post on Wednesday that the proposed rules would give accused students stronger due-process rights than they had under Obama’s guidance.
Nationwide, colleges have faced rising pressure over the past several years to respond to sexual assault allegations.
The administration’s proposal would ease the investigative burden on colleges in certain situations, the two officials said. Schools would be held responsible for investigating complaints of sexual violence that occur within their programs and on campus. But they would not necessarily be responsible for investigating certain incidents that occur off campus, officials said. That would be a departure from Obama’s guidance.
At some point, the department is expected to publicly release a proposed rule that would be subject to revision before final adoption.
Sen. Lamar Alexander (R-Tenn.), chairman of the Health, Education, Labor and Pensions Committee, who was critical of the Obama administration for issuing less formal guidance, praised DeVos in a statement for “beginning the appropriate public rulemaking process, including the opportunity for notice and comment, to bring much needed clarity to the federal rules helping colleges protect the safety and rights of students.”
But Sen. Patty Murray (Wash.), the committee’s ranking Democrat, said: “It’s shameful and appalling that Secretary DeVos is still considering issuing a rule that would make it harder for students to seek justice if they’ve been sexually assaulted on campus.”