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Education Department Announces New Rules For Sexual Assault Cases On College Campuses


A mixed reaction today for new federal rules on how colleges should handle cases of sexual assault and harassment - the Trump administration has announced sweeping changes to Obama-era guidelines that current officials say were unfair to students accused of assault or harassment. Education Secretary Betsy DeVos says the changes she's proposing will level the playing field. Critics say the new regulations are unfair to victims. NPR's Tovia Smith reports.

TOVIA SMITH, BYLINE: For more than a year, DeVos has been working to fix what she called an unraveling of justice in campus disciplinary proceedings - echoing an idea expressed by President Trump as well. DeVos says every accused student needs to know that guilt is not predetermined. Her new regulations largely beef up legal protections for the accused, which is welcome news to defense attorneys like Justin Dillon.

JUSTIN DILLON: What I hope that this will do is restore some sanity to how these cases are adjudicated on the ground in person.

SMITH: For starters, DeVos' rules would allow schools to make it harder to prove allegations by requiring clear and convincing evidence instead of just a preponderance of the evidence. Under the new rules, schools would also have to allow cross-examination of both students, which used to be optional. It's a change many have been pushing for, including Samantha Harris from the Foundation for Individual Rights in Education.

SAMANTHA HARRIS: The U.S. Supreme Court has called cross-examination the greatest legal engine ever invented for the discovery of truth. And because these cases so often turn entirely on credibility, cross-examination is essential to due process.

SMITH: The regulations say students can't confront each other directly. Instead, a third party, like their lawyer, would ask the questions. But victims' advocates say even that would re-traumatize victims and would discourage them from coming forward and asserting their rights under Title IX, the law that protects students against discrimination.

JESS DAVIDSON: Yeah, I mean, this is disgraceful. It is a blatant attempt to shut survivors out of a process that is designed to protect their civil rights.

SMITH: Jess Davidson heads the group End Rape on Campus. She says it's also wrong that, under the new rules, schools would only have to investigate accusations reported directly to designated administrators and not incidents they heard about through others.

DAVIDSON: It really is letting schools off the hook. There's a number of elements that give schools a huge latitude to do nothing and sweep rape and assault under the rug.

SMITH: The new regulations also narrow the definition of sexual harassment from unwelcome sexual conduct to only conduct that is so severe, pervasive and objectively offensive that it denies a person's access to their education. Catherine Lhamon, who was the Department of Education's assistant secretary for civil rights in the Obama administration, says the changes would be a major setback.

CATHERINE LHAMON: The work on this topic will grind to a halt at a time when the country has come to the realization, in the #MeToo era, that sexual harassment is pervasive. And against that backdrop, this administration says, we're going to ask our school communities to do less work and to turn their backs on this problem.

SMITH: For their part, schools see the new regulations as a mixed bag. Terry Hartle, with the American Council on Education that represents college presidents, says, on the upside, the new rules offer a lot more clarity on what schools do and don't have to do, which is something of a relief.

TERRY HARTLE: At the end of the day, colleges and universities want to be fair to both parties. And they want to avoid getting into trouble with the federal government for doing something incorrectly.

SMITH: But on the other hand, Hartle says schools are wary of being pushed into increasingly court-like proceedings and dealing, for example, with cross-examinations.

HARTLE: This would permit one student to hire a highly paid legal pit bull to grill another student in a campus disciplinary hearing. But it's a mistake to try and turn us into courts because we're not very good at that.

SMITH: DeVos insists the new regulations strike the right balance - considering the emotional and physical suffering of survivors, as well as the pain and ruined reputations of students denied a fair hearing. The public will have 60 days to comment on the proposed rules. And the administration may make changes before the new rules take effect. Unlike Obama-era guidances, these regulations would have the force of law. Tovia Smith, NPR News. Transcript provided by NPR, Copyright NPR.

Tovia Smith is an award-winning NPR National Correspondent based in Boston, who's spent more than three decades covering news around New England and beyond.

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