Deadline Passes for Comment on New USDE Rules on Sexual Assault (February 22, 2019)

Recently, the deadline passed for the submittal of comments on draft rules promulgated by the Trump administration that will govern how accusations of sexual assault at the nation’s schools are handled. One of the new rules will allow for cross-examination of accusers in real time, which has alarmed victims’ advocates. Other changes also revise standards of notice, proof, and jurisdiction.

In 2011, the Obama administration issued a letter that required school administrators to effectively handle cases, but did not provide specific procedures. Also, school districts that appeared to be ineffective in handling such cases were at risk of losing Title IX federal funds. Those critical of that letter have espoused that school district officials often favor the accuser/victim, putting mostly males at a perceived unfair advantage. Conversely, others have pointed to a multitude of cases whereby accusers have experienced much difficulty with regard to being treated fairly, and that false complaints are in the great minority.

Now, the rules promulgated by USDE Secretary Betsy Devos are viewed as granting more protections to students alleged to have committed misconduct and easing up on the oversight of school districts. They would also allow cross-examination of the accuser and maintain that harassment must be “so severe, pervasive, and objectively offensive” that it denies a person equal access to education. A major point of contention centers on what qualifies as “pervasive”, particularly in an instance where there has been a single egregious act. Further concerns include that a school district’s purview is limited to acts committed on campus or at officially sanctioned school activities, and a victim must notify the applicable “corrective authority.” Thus, many believe that the new rules will deter reporting.

Once the USDE has considered comments received, a determination will be made as to what shape the final rules will take.