The US Department of Education released on November 16th an anticipated proposal regarding the improvement of schools’ responses to sexual harassment and assaults.

The proposed rule falls under Title IX, the federal civil rights law that bans discrimination on the basis of sex in education programs that receive federal funding. The process of developing the suggested regulation involved over a year of research, deliberation, and discussions with students, advocates, school administrators, and Title IX coordinators.

“Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment,” said Betsy DeVos, Secretary of Education. “That starts with having clear policies and fair processes that every student can rely on.”

Overall, the proposed regulation reduces liability for universities, forms a more specific definition of sexual harassment, and allows schools to utilize a set of higher standards when reviewing claims of sexual violence.

DeVos said one of the key motivations behind the proposal was to ensure that every survivor of sexual violence is taken seriously and that every student accused of such actions understands that guilt is not predetermined.

In a 2017 speech, she provided examples of students who were wrongly accused and claimed the regulations did not serve survivors who had to undergo multiple appeals since the system had “failed the accused.”

“We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process,” said the Secretary.

However, the proposal has received widespread backlash for potentially bolstering the rights of those accused.

One provision of the plan states, “The proposed rule would require schools to apply basic due process protections for students, including a presumption of innocence throughout the grievance process; written notice of allegations and an equal opportunity to review all evidence collected; and the right to cross-examination, subject to ‘rape shield’ protections.” Schools would be required to hold a live hearing where a cross-examination would be conducted by the parties’ advisors, though both parties could request to be in separate rooms during the cross-examination.

The American Civil Liberties Union quickly took to Twitter in response to DeVos’ proposed regulation. “We advocate for fair school disciplinary processes that uphold the rights of both parties in campus sexual assault and harassment cases,” the organization stated. “The proposed rule would make schools less safe for survivors of sexual assault and harassment, when there is already alarmingly high rates of campus sexual assaults and harassment that go unreported.”

The statement continued that the proposed rule “promotes and unfair process” and is “inappropriately favoring the accused.”

National Review writer David French appears on C-SPAN in 2016 (Image)

David French, senior writer for the National Review, wrote an article criticizing the policy titled, “DeVos Strikes a Blow for the Constitution.” “The old-school ACLU knew there was no contradiction between defending due process and ‘supporting survivors,’” he wrote. “Indeed, it was through healthy processes that we not only determined whether a person had been victimized, but also prevented the accused from becoming a ‘survivor’ of a profound injustice.”

The Washington Post’s Radley Balko and National Review editor Charles C. W. Cooke also tweeted their disappointment in the civil rights organization for using the phrase “inappropriately favoring the accused.”

Despite the debate, Terry Hartle, Senior Vice President of the American Council on Education, stated that the new rules will more clearly outline their responsibilities. “What you want is schools being able to act in good faith without hearing that they’re going to be second-guessed by government bureaucrats later on,” he said.

Betsy DeVos's Title IX Proposal Might Boost Rights for the Accused