Department of Education unveils new rules to protect those accused of sexual harassment

Greg Nash

Education Secretary Betsy DeVos has proposed new guidelines for how schools handle sexual harassment allegations that would offer more protection to students accused of misconduct.

The Education Department released a plan that would require schools to investigate allegations of sexual assault and harassment only if the alleged incident took place on areas under the purview of the school and was reported to campus officials.

{mosads}DeVos’s proposal would also make it more difficult for students to prove sexual misconduct by narrowing the “overly broad definitions” of sexual harassment and would allow students who have been accused of wrongdoing to question their accusers in campus hearings.

“The Department recognizes the high stakes for all parties involved in a sexual harassment investigation, and recognizes that the need for recipients to reach reliable determinations lies at the heart of Title IX’s guarantees for all parties,” an unofficial version of the proposal states.

In cases involving elementary and secondary schools, the proposal would allow — but not require — the schools to hold a live hearing as part of “their grievance procedures” when handling allegations of sexual harassment.

“With or without a hearing, the complainant and the respondent must have an equal opportunity to pose questions to the other party and to witnesses prior to a determination of responsibility, with each party being permitted the opportunity to ask all relevant questions and follow-up questions, including those challenging credibility, and a requirement that the recipient explain any decision to exclude questions on the basis of relevance,” the proposal states.

In the event that no hearing is held, the proposal calls for each party to have the opportunity to conduct its own questioning of other parties and witnesses by “submitting written questions to the decision-maker, who must provide the answers to the asking party and allow for additional, limited follow-up questions from each party.”

In contrast, the Education Department determined in the proposal that all grievance procedures in cases involving institutions of higher education, where most parties and witnesses are adults, must include live cross examination at hearings. 

The plan would also replace Obama-era guidance for colleges and universities on how to handle sexual assaults on campuses to better protect students who are accused. The Trump administration rolled back the Obama guidance last year.

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