The public now has 60 days to weigh in during the public comment period of Secretary of Education Betsy DeVos’ new sexual misconduct regulation guidelines. The guidelines, although leaked online in September, were formally announced by the Department of Education in November and narrow the definition of sexual harassment, as well as a college or university’s obligation in response to any allegations. Despite being framed by DeVos and her department as leveling the playing field for both the victim and the accused in situations of sexual misconduct, the new regulations, above all, protect schools and sway the favor of investigations and rulings towards the side of the accused.
Obama era regulations, released in 2011 through a “Dear Colleague” letter, put in place stronger enforcement of Title IX regulations by colleges and universities and required schools to quickly and equitably respond to sexual harassment and assault allegations. These former guidelines defined sexual harassment as “unwelcome conduct of a sexual nature” that results in a hostile environment and required schools to act on misconduct if they knew or “reasonably should” know of student-on-student harassment.
DeVos’ proposed guidelines would compress the definition of sexual harassment into a smaller and more restrictive definition, where sexual harassment is “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” Furthermore, schools would only be held liable to take action if the student makes a complaint known through official channels; in other words, telling a trusted professor, coach or resident adviser would not be enough.
These guidelines also change the status of evidence needed in investigations for universities or colleges to take action against an accused student. Before, a “preponderance of evidence” was required and meant that an accused had to be found “more likely than not” to have committed sexual misconduct. Now, “clear and convincing” evidence is required, demanding more of victims when coming forward. The general stance of these new regulations states that “clear and convincing” requirements strengthen due process and promote equality throughout the investigation. However, Jess Davison, executive director of the group End Rape on Campus, said in an interview with Vox that “they’re implementing a standard that is not neutral,” because the “preponderance of evidence” standard “assumes neither party is right or wrong” and “puts both students on equal footing,” while “clear and convincing” standards sway the favor towards the accused.
In the case of Title IX proceedings, the use of looser evidence requirements, such as the “preponderance of evidence” is appropriate because the potential penalties are lower than in criminal cases, where the “beyond a reasonable doubt” standards are utilized. The “worst that could happen to a student” is expulsion, according to Alyssa Peterson, the policy and advocacy coordinator of Know Your IX, an American political advocacy group founded in 2013.
Additionally, the regulations allow for institutions to choose which levels of evidence they require, either the former Obama era guidelines or the new proposed rules, which would result in confusing national standards and different students having different levels of protection or standards depending on where they were.
Beyond even the logistics of what these proposed regulations would mean for victims of sexual assault and harassment on campuses, many are worried that DeVos crafted the new guidelines without the best interest of survivors at heart. Before the release, DeVos met with various groups, such as Families Advocating for Campus Equality (FACE), Stop Abusive and Violent Environments (SAVE) who advocate for the rights of people accused of sexual assault, and the National Coalition for Men (NCFM). Further, the president of NCFM has been quoted blaming a victim of caught-on-camera assault committed by football player Ray Rice, saying “if she hadn’t aggravated him, she wouldn’t have been hit.” The input of an organization whose leader had sided with an indicted assaulter should not be taken into consideration when attempting to level the playing field between victims and the accused.
Unfortunately, issues of rape and sexual misconduct are not unknown to the college of our hearts. In the case of the University of Maine, 41 cases of rape and 18 cases of fondling were reported in the last three years, according to the University of Maine 2017 Annual Security and Fire Safety Report, provided by the University Of Maine Police Department in accordance with the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistic Act of 1998. UMaine has standards and resources in place for victims who wish to come forward but these could be affected by the proposed regulations.
Additionally, recent news states that a former UMaine baseball pitcher, Clay Conway, was charged in November with raping six women in his home state of Delaware. He attended UMaine for the 2014-15 and 2015-16 school years before transferring to the University of Delaware. The alleged rapes occurred over the last five years, and Conway was expelled from the University of Delaware in September for “sexual assault and dating violence.” During the university’s investigation, it was found that Conway “more likely than not” assaulted women, based on information from the victim and several witnesses, “more likely than not” choked the victim and “may have” mentioned “driving her dead body into the Delaware River,” according to the Bangor Daily News.
While there were never any reported sexual misconduct cases involving Conway while he was a student at the University of Maine, having a former UMaine student accused of such severe instances of assault serve as a reminder that these issues do not fall far from home.
These new regulations proposed by DeVos may have changed whether or not Conway would have been expelled from the University of Delaware, since they used the “preponderance of evidence” standard to find that Conway “more likely than not” committed the alleged rape.
Finally, the proposed rules could allow institutions to enter dangerous territory of refusing to investigate sexual misconduct even in cases of rape. An opinion piece written by Dana Bolger, co-founder of Know Your IX for the New York Times, sites a court case, Ross v. Corporation of Mercer University, where rape was ruled to not count as sexual harassment under the new standards “because a one-time act of violence is not ‘pervasive.’” These new regulations increase the amount of gray area in instances of reported sexual misconduct, make it harder for students to see their claims investigated and decrease the level of equality between the victim and the accused in Title IX proceedings.
