Not long after Betsy DeVos became Secretary of Education, she implemented changes in the way sexual misconduct, harassment and assault allegations are handled by colleges and universities.
Critics have lamented her relaxation of changes made by the Department of Education (ED) during the Obama administration. Among those was a “preponderance of evidence” standard, which created a lower burden of proof for holding someone responsible for such misconduct.
Further, the Obama administration didn’t want these cases being handled via mediation, where alleged victims and perpetrators are allowed to question each other. Over the last year, the ED has allowed mediation.
Now, the department is reportedly preparing to codify some of the changes they’ve informally implemented into policy. For example, according to a recent The New York Times report, the department is proposing rules that would allow both sides to question each other and to see evidence obtained in the case.
The proposed new rules would also let colleges and universities decide whether to use the “preponderance of the evidence” standard or require that there be “clear and convincing” evidence, which is a higher standard.
Further, the proposed policy would lessen the liability that schools could face in these cases regarding whether they should have reasonably been expected to know about a case of sexual misconduct. They would be required only to investigate formal complaints made to school officials. This wouldn’t include complaints made to resident advisers (RAs) and others in positions of authority in campus housing.
Perhaps most significantly, under the proposed rules that have been reported, the definition of sexual harassment would change. Under the Obama era ED, it was “unwelcome conduct of a sexual nature.” The new definition would be “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.”
It should be noted that an ED spokesperson called the proposed rules that were reported “premature and speculative.”
With these rules in flux, it’s understandable that students, parents and college officials may be confused about what constitutes actionable misconduct and how to handle allegations. However, many sexual offenses are still crimes, regardless of how individual schools handle them. A conviction can have a serious, long-term impact on a young person’s future. That’s why it’s essential to seek experienced legal guidance if your child is charged with sexual assault.