Working for Justice

Secretary DeVos’ Proposal on Sexual Assault Draws Wave of Personal Attacks

Posted February 8th, 2019 by in Criminal/Sexual Violence.

Not long after she was sworn in, Secretary DeVos met with campus sexual survivors and advocates and promised any action she took on Title IX would respect their viewpoint. That was a lie. Secretary DeVos’ proposed regulations overwhelmingly reflect the view of institutions seeking to limit liability at survivors’ expense, in four key ways.

First, the proposal limits schools’ responsibility to investigate and/or remedy Title IX violations to situations in which the survivor makes a formal report to one of a handful of designated “mandatory reporters.” Current regulations require institutions to investigate Title IX violations when is “knows or reasonably should know” about potential violations. The proposed change relieves schools of any responsibility for Title IX violations observed by or reported to faculty, staff, residential advisors, etc. This change is blatant attempt to limit school’s liability while placing students in greater danger.

Second, DeVos’ plan restricts institutions’ Title IX obligations to incidents that occur “on campus or within an educational program or activity.” This rule ignores, among other things, the countless acts of gender-based violence that occur in off-campus university-affiliated housing, fraternities and sororities and areas that although are technically “off campus,” are essentially controlled by the school for which educational institutions are currently responsible under Title IX.

Third, the proposal lets institutions choose what burden of proof applies in Title IX proceedings. Current Title IX guidance provides that schools should use the “preponderance of evidence” standard, under which schools should find Title IX violations when presented with enough evidence to show it was more likely than not the conduct occurred. DeVos’ plan raises the bar and allows institutions to require survivors to meet the far more demanding standard to show “clear and convincing” evidence.

Finally, the proposed changes require survivors to submit to a cross-examination by the accused through a third party.  If a survivor refuses to submit to cross-examination, schools are instructed not to rely on any statements made by the survivor in reaching a determination.  This change will have the intended effect of chilling reporting and prosecution under Title IX by subjecting survivors to victim-blaming and victim-shaming by non-lawyers in an educational setting with no judge or trained lawyer to protect the survivor or to stop such conduct.

In short, Secretary DeVos wholly capitulated to institutional risk managers in enacting rule changes that will set back decades of efforts to curb campus sexual assault and harassment.

Steven J. Kelly

Steven J. Kelly

Mr. Kelly is Chair of Sanford Heisler Sharp’s Criminal Sexual Violence Practice Group. He represents plaintiffs, especially those from traditionally marginalized groups, who seek justice as victims of violence. Learn More

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