Education Secretary Betsy DeVos has proposed a major change in the way American universities deal with campus sexual assault and harassment allegations in a move rights groups say could harm survivors.
Ms DeVos has wants to add protections for those accused and limit situations in which schools would be required by law to investigate complaints brought forward by alleged victims, changes she said will treat both sides fairly.
The requirements for investigation include only incidents which occurred on the universities’ campuses or property under the school’s authority and in those cases, only if the incident is reported to certain officials.
It also argued the proposal gives victims who do not want to file formal complaints more flexibility in reporting incidents that would not trigger official investigations.
The proposal is essentially trying to tell schools how to apply the 1972 law known as Title IX, which bars discrimination based on sex in schools that receive federal money.
The American Civil Liberties Union (ACLU) said they “strongly oppose” the changes.
“The proposed rule would make schools less safe for survivors of sexual assault and harassment, when there is already alarmingly high rates of campus sexual assaults and harassment that go unreported,” the rights group said in a statement. ”It promotes an unfair process, inappropriately favoring the accused and letting schools ignore their responsibility under Title IX to respond promptly and fairly to complaints of sexual violence.”
Fatima Goss Graves, CEO of the National Women’s Law Center, said in a statement: “If these draft rules go into effect, schools will become more dangerous for all students and more schools will shield harassers and rapists”.
Ms DeVos, who came under fire last July for meeting with men’s rights groups as part of her review of sexual assault reporting procedures, said in a statement her goal is “ensuring that every student can learn in a safe and nurturing environment”.
“That starts with having clear policies and fair processes that every student can rely on. Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined,” she said.
Ms DeVos has previously said she thought universities were often unfair to the accused, not giving them ample opportunity to defend themselves.
Under the proposal, accused students would be considered innocent until proven guilty, as in a court of law.
These students would also be allowed to review and respond to any evidence collected by the university investigators.
They would also be allowed to cross-examine, albeit indirectly through a third party.
Democrat Congresswoman-elect Ayannna Pressley, who won a seat in the House of Representatives dueing last week’s midterm elections also hit out at the plans.
“Betsy DeVos’s proposal to deny critical rights and protections to survivors of campus sexual assault is yet another example of an administration devoid of empathy”.
According to the Rape, Abuse, and Incest National Network, only 230 of every 1,000 sexual assaults are reported to police.
Among university-aged female students, the majority of victims, only 20 per cent currently report incidents and under the proposed rules, that number could drop even further.
Barack Obama’s administration also provided guidance to universities receiving federal funds, in the form of guidance letters.
Under current policy, schools are required to investigate all student complaints, whether the alleged incident occurred on campus or off.
Any failure to do so could bring that university under federal investigation.
Some universities’ administrators complained the Obama-era rules were burdensome and proponents of Ms DeVos’ proposal have said the rules unfairly favoured alleged victims because the Obama administration required schools to follow the “preponderance of the evidence” rule – meaning allegations were to be considered “more likely than not” true.
Ms DeVos’ proposal says a new “clear and convincing” standard can be used, which legally means allegations could be considered highly probable but could be false.
Even if victims do not file a formal complaint, the proposal encourages schools to offer a range of measures to help them continue their studies, including counseling, class schedule changes, dorm room reassignments and no-contact orders for those accused of harming them.
The draft rules also serve to narrow the definition of sexual harassment, which some critics have said is ironic given the several accusations of harassment levied at Mr Trump himself.
While the 2011 guidance defined it as “unwelcome conduct of a sexual nature,” the new proposal defines it as unwelcome sexual conduct but only if “it effectively denies a person equal access to the school’s education program or activity.”
Before Ms DeVos’ proposal can be approved, there will be a public comment period and it remains to be seen what the response from universities – and their students – will be.
Agencies contributed to this report.