DeVos Overhaul Could Make Campus Sex Misconduct Harder To Prove. Will That Protect The Accused Or Silence Accusers?

By Dawn Rhodes Chicago Tribune

WWR Article Summary (tl;dr) Secretary of education, Betsy DeVos, seeks to undo Obama-era guidelines on how college officials handle sexual assault claims against students, which critics say are unfair to the accused.

CHICAGO

After a University of Chicago student reported to school officials last year that her former boyfriend sexually assaulted her, a school disciplinary board ruled in her favor and expelled the fellow student she accused.

But that wasn't the end of the story.

The student who was kicked out then sued the university, arguing he was denied a fair chance to defend himself.

In doing so, he joined a growing number of critics who say that university procedures for investigating sexual misconduct under Title IX, a 1972 law prohibiting sex discrimination in federally funded educational programs, are themselves discriminatory against the accused.

Such policies, the pending federal lawsuit contends, "emphasize speed of resolution over due process."

Now the debate has taken on new urgency, as President Donald Trump's secretary of education, Betsy DeVos, seeks to undo Obama-era guidelines on how college officials handle sexual assault claims against students, which critics said were unfair to the accused.

Those leery of her proposals, however, fear an over-correction that will result in fewer protections for victims and lesser punishment for perpetrators.

DeVos rescinded her predecessor's policies in 2017, months after taking office, and released the proposed rules last November, saying they would ensure "due process rights for all."

Unlike the Obama administration, which issued guidelines, DeVos is proposing new regulations that will have the force of law once implemented.

Her office now is reviewing tens of thousands of public comments submitted during a recent 60-day review period. Due process proponents have lauded the proposals, saying they will restore more fairness to accused students. But some sexual assault survivors and advocates fear the rules give the accused too much benefit of the doubt and will dissuade victims from reporting assault.

Among the proposed changes:

-Hearings would be required at which representatives for the accused and the accuser would be able to cross-examine each other.

-College disciplinary officials could have less power to address alleged misconduct that happens off-campus or outside an educational program.

-Universities could choose to use a more stringent standard of proof _ clear and convincing evidence, rather than the less rigorous standard of a preponderance of the evidence.

"We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process," DeVos said when she unveiled her proposals. "Those are not mutually exclusive ideas. They are the very essence of how Americans understand justice to function."

How such changes might affect lawsuits like the one involving the University of Chicago is not clear. But the proposed rules are prompting Illinois universities to reassess their policies and confront conflicts between federal and state law.

Local experts said they appreciated DeVos' effort to clarify Title IX regulations and the chance to weigh in with formal comments. Some also say their school's current policies already align with many of the draft rules. But there's also concern that changes could create new bureaucratic challenges and could send mixed messages about a school's commitment to eliminating sexual misconduct.

"There was some sense under the Obama administration that the pendulum had swung a little far toward being potentially overprotective of victims' rights," said Jamie Ball, Title IX coordinator and director of the Office of Equal Opportunity Access at Southern Illinois University at Edwardsville.

"My impression now is that it's maybe a little under-protective and we've gone a little too far in the other direction."

In the University of Chicago case, the student who sued claims a woman he formerly dated falsely accused him of sexual assault because she was embarrassed when friends learned of their ongoing sexual relationship.

But besides challenging the allegation itself, attorneys for the male student also maintain he was given little opportunity to defend himself. For instance, he was not allowed to review details of the charges against him until two weeks before the disciplinary committee hearing took place, the lawsuit says.

"(These policies) stripped away an accused's right to cross-examination and right to legal counsel, lowered the burden of proof to preponderance of the evidence, and placed an emphasis on completing any disciplinary proceedings within 60 days over affording an accused due process," the lawsuit states.

The lawsuit also states the committee and an administrator ignored critical evidence that would have disproved the assault allegations.

The disciplinary committee unanimously sided with the female student last June. Officials concluded that the male student, among other violations, coerced her into sex, assaulted her while she was incapacitated, choked her and violated a prior no-contact order issued by the university, according to a copy of the decision included in the lawsuit.

The committee was emphatic in its decision, noting that, even though the accused student was close to graduation, the "gravity of the behavior" warranted the expulsion.

Attorneys representing both University of Chicago students, who are not identified in the suit, did not respond to requests for comment. The university and the female student are seeking to have the suit thrown out. A university spokesman declined to comment.

Whatever the outcome of that lawsuit, the arguments of the expelled student dovetail with much of DeVos' rationale for changing Title IX guidelines.

DeVos herself has lamented the number of students "forced to go to court to ensure their rights."

Here's how local students and experts weighed in on some of the proposed rule changes:

-Cross-examination and student representatives The Title IX rules apply only to potential campus disciplinary action against accused students, staff or faculty, separate from any possible criminal proceedings. But the proposed changes could make the college disciplinary procedures function more like courts of law.

One big example is that, under the proposed rule changes, the students' representatives would be able to cross-examine each other during disciplinary hearings. The current policy at several schools is for each party to submit questions in writing instead of allowing students to directly confront each other. Ball, of Southern Illinois, said this method had been effective in gathering facts without risking additional trauma to students involved.

Ball said she was concerned about the possibility of students hiring criminal defense attorneys to represent them. "I know from my experience that being questioned by someone with that skill set could be even more painful than being questioned by the (accused student)," Ball said.

Sarah K. Wake, associate general counsel at Northwestern University, cited another issue for students who can't or don't hire an attorney.

"We'd have to train people how to conduct cross-examination and how to assess or attack credibility," Wake said. "I just cannot imagine how that would play out in a student disciplinary hearing."

-How far will a school's jurisdiction extend? One of the proposed DeVos rule changes that has prompted much hand-wringing is the extent to which college disciplinary boards could address conduct that occurs off-campus.

According to the DeVos proposal, a school "is only responsible for responding to conduct that occurs within its 'education program or activity.'"

Experts say that, depending on interpretation, that could severely limit a disciplinary board's power.

"The way we look at it, that essentially could mean a student who experiences a sexual assault in our residence halls goes through one process, and a student who experiences a sexual assault in a private party across the street from that residence hall would have to go through an entirely different process," said Timothy Love, executive director for equity and compliance and the Title IX coordinator at Loyola University Chicago.

Serene Singh, a Northwestern senior, said that policy not only would disadvantage people living off-campus but also students at community colleges or smaller schools that don't provide on-campus housing.

"That (policy) is missing a lot of where sexual assault actually takes place," said Singh, who directs the campus group Sexual Health and Assault Peer Educators. "It's ignoring the reality of where and how sexual assault happens."

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