U.S. EDUCATION Secretary Betsy DeVos’s proposed revisions of regulations governing how colleges handle allegations of sexual harassment and assault are now out for public comment and, not surprisingly, have generated a great deal of controversy. Some of the criticism, to our mind, has been overheated. Ms. DeVos is right that there are problems with the current system, and her department’s proposal contains some sensible changes that would bring needed balance to how disciplinary proceedings are conducted.
At the same time, though, there are ill-advised revisions that are cause for legitimate concern because of the chilling effect they would have on the willingness of students to come forward with allegations of sexual misconduct.
Proposed regulations released last month by the department would replace the now-rescinded guidance by the Obama administration on how to enforce Title IX, the federal law banning sex-based discrimination in federally funded education programs. A controversial part of the Obama guidelines was the requirement that colleges use the lowest standard of proof, “preponderance of the evidence,” in deciding whether a student had violated codes of conduct with sexual misbehavior. Due-process advocates, including liberal legal experts, have argued in favor of a higher standard of “clear and convincing evidence.” The Education Department’s solution is to let institutions choose what standard to use — which is reasonable as long as it’s consistently applied.
Other changes aimed at ensuring fairness to students accused of misconduct — a presumption of fairness, written notice of allegations, equal opportunity to review all evidence collected, right to an appeal — make sense.
What doesn’t make sense is a reform that would limit a school’s responsibility (and liability) to investigating incidents that take place on campus or within a school-sponsored program or activity. Most college students don’t live in dorms, and many alleged sexual encounters happen in apartments that are located just off campus.
Most troubling, though, is a proposal that would guarantee a person accused of sexual misconduct the right to cross-examine the accuser. The examination would be done by the parties’ advisers, and personal confrontation between the parties would not be allowed. But there is still the very real risk that this requirement would discourage survivors of sexual assault from coming forward.
In a recent Post op-ed, Ms. DeVos acknowledged the emotional and psychological challenges that survivors face in reporting sexual harassment and assault. So surely she should recognize that requiring victims to submit to aggressive cross-examination in an adversarial setting would be a further deterrent to them coming forward. There are other, far less traumatizing ways to pose questions and get needed answers.
The comment period ends Jan. 28. We hope Ms. DeVos takes seriously the concerns raised about the proposed regulations and adopts revisions before finalizing the rules.