Another view: Make your voice heard on proposed campus sexual assault rules
On Friday, the U.S. Department of Education released highly anticipated proposed rules for how universities should respond to sexual misconduct. They give alleged rapists and harassers more protections, narrow the types of cases schools must investigate, allow schools to use a higher bar of evidence in adjudicating cases, and ease up on punishments schools may face if they don't take their responsibility seriously.
The department argued that the previous process under President Barack Obama resulted "in infringement on academic freedom and free speech and government regulation of consensual, noncriminal sexual activity." But it's important to remember that sexual assaults are rarely reported, let alone fabricated, and alleged victims have a right to trust their school will protect them.
There are a few positives: The proposed rules wouldn't permit questions about an alleged victim's sexual history, a tactic that Maine has already banned in criminal proceedings. And they require schools to give both sides the chance to review, electronically, any evidence obtained as part of the investigation, and respond in kind, so everyone knows what information is guiding a final decision.
But let's look at a few specifics.
Currently, when students go through the grievance process, schools use a "preponderance of the evidence" standard — basically, is it more likely than not? — in deciding cases. This is the same level of evidence that someone needs to obtain a protection from abuse order in a court. Now, however, the Education Department is proposing that schools decide for themselves whether to use a "preponderance of the evidence" standard or the higher bar of a "clear and convincing" standard to give them "flexibility."
If a significant point of the new rules is to provide clarity to schools, this matter of what standard of evidence to use must be settled. There can be little justice in a system where different schools abide by different standards.
The proposed rules would also only require schools to respond to alleged sexual misconduct when they have "actual knowledge" of it happening, meaning: Did someone report it to a designated official "who has authority to institute corrective measures," often called a Title IX coordinator? Quite often, students don't know to report a traumatic assault to a specially designated person they've never met before. The funnel by which a school learns of potential assaults should we wide, not small, to best address issues of safety.
In addition to requiring an incident to have occurred on school property or at school activities, the proposed regulations ease up on oversight of schools' decisions on how to punish students.
The Education Department believes that local schools "are best positioned to make disciplinary decisions; thus, unless the (school's) response to sexual harassment is clearly unreasonable in light of known circumstances, the Department will not second guess such decisions," read the proposed rules.
This sounds like the department will shirk its responsibilities to defend students from colleges that act in bad faith or show poor judgment.
Finally, it is worrisome that the federal government would allow attorneys to cross-examine alleged victims and perpetrators during a live hearing. Unless there are protections in place, this setup could make the grievance process too similar to a court of law where one side could hire an expensive, intimidating attack lawyer to grill the opposing side. These are campus disciplinary hearings to decide how to keep students safe and whether to punish alleged perpetrators; they are not trials.
Granted, there are benefits to going through the rulemaking process. In the past, the U.S. Department of Education has simply issued a series of less formal guidance documents for universities to follow when they look into claims of sexual misconduct; there haven't been official Title IX regulations since the 1970s. And while the guidance process is faster, it didn't always allow the public to provide input.
So make use of the opportunity and make your opinion known. You can submit your comments on the proposed rulemaking electronically at regulations.gov, or send them to Brittany Bull, U.S. Department of Education, 400 Maryland Avenue S.W., Room 6E310, Washington, D.C. 20202.
It's important to be part of the process and ensure your voice is heard.
— Bangor (Maine) Daily News
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