U.S. Department of Education Secretary Betsy DeVos soon will introduce new rules that govern how higher education institutions respond to sexual assaults. The rules are expected to strengthen protections for students accused of sexual assault, limit schools’ responsibilities in some cases and raise the burden of proof for respondents. The new rules may also speak to how sexual harassment is defined. What remains unclear is how these rules would apply to bring cases to a resolution.
The current political climate and recent media attention to mismanaged sexual misconduct cases can contribute to the idea that most schools approach these cases with minimum effort. That’s not the case.
In our recent research with 10 Texas universities, we have found that, almost without exception, schools do far more than required and look for ways to maintain a safe and productive environment for students. We believe other universities across the nation approach the problem of campus sexual assault similarly.
Campus sexual assault continues to be a serious issue and one that needs to be constantly addressed by schools in the form of training, strong policy and provision of resources as needed.
Title IX training has historically emphasized that complainants and respondents must receive equitable treatment and accommodations, and that complaints be handled with consistent practices and standards for both parties. As a result, for many schools, these proposed federal changes will have no effect on what is already being done.
Reducing burdens on schools would mean they are responsible only for investigating incidents that occur within their programs or on their campuses. However, rules would not prevent schools from protecting and accommodating students as needed by investigating cases when university students are involved — no matter where assaults occur.
Most schools rely on a standard of preponderance of evidence. The new rule would provide schools the option of using that standard or a higher one — clear and convincing evidence. Since most schools already meet the proposed minimum standard, there is no need to change it.
Appeals should be available in cases with due process errors or when newly discovered evidence could make a significant difference in the outcome. Again, for many schools, the proposed rule codifies what they are already doing.
What concerns us most as researchers in this arena is the possible rule change allowing or requiring direct cross-examination between respondents and complainants. It would provide little or no benefit to respondents and poses great risk to complainants. Recounting details that victims often see as humiliating and being questioned by the people who caused that trauma is unacceptable and could further traumatize victims. Respondents have the right to provide evidence and ask questions through unbiased third parties — a practice advocated by most Title IX training.
Another problematic proposal would permit informal resolutions through mediation. Although studies hint that mediation may eventually become a good option in the future, schools aren’t currently equipped with practitioners qualified to mediate.
Unfortunately, campus sexual assaults do happen, and students and parents expect schools to do everything they can to prevent and respond to sexual assault appropriately. As educators and campus administrators, we expect the same.
The new federal rules would provide a minimum standard for schools. They don’t remove a school’s right to protect students. Schools should remain vigilant at keeping students safe, providing the resources needed in times of crisis and always advocating for victims.
Tilley and Kapusta are completing a three-year project to address sexual violence at Texas college campuses.
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