The U.S. Department of Education released its official rewrite of Title IX regulations just before Thanksgiving, serving up plenty for victims’ rights advocates to chew on. The holiday leftovers might be long gone, but DeVos-induced heartburn rages on.
The proposal revamps the federal government’s guidance for schools dealing with sexual assault cases, in part by reversing Obama-era policies that were blasted for trampling due process rights. The proposed rules require schools to follow a process more akin to a court proceeding, including burden-of-proof standards, evidence sharing, and cross-examination. They also require a live hearing, one of the most contentious provisions.
Education Secretary Betsy DeVos has consistently maintained the previous policies—adopted without a formal rule-making process involving public input—made it too easy for false accusations to ruin a student’s life.
“Our proposed framework supports survivors while safeguarding due process, helping make Title IX protections against sex discrimination a reality for all students,” DeVos wrote in an op-ed for The Washington Post. “Indeed, it is difficult to understand how people can object to procedures premised on the foundational concept of due process, or how anybody could have confidence in a system that lacks such protections.”
But critics most certainly do object. And they’re doing everything they can to derail the proposed changes.
A coalition of influential activist groups, including the Human Rights Campaign and the NAACP, has asked the administration to double the normal 60-day public comment period. That would push it past the end-of-semester and holiday season distractions, they reason. But it would also postpone the final adoption until Democrats take control of the U.S. House of Representatives.
House Democratic Leader Nancy Pelosi of California has vowed to fight the proposed changes.
“This draft proposal enables schools to shirk responsibility, completely ignores harassment, denies survivors due process, and discourages survivors to come forward,” Pelosi wrote in a statement. “Yet again, the Trump administration and Republicans continue to perpetuate the most anti-woman, anti-student, and anti-equality agenda in recent memory.”
DeVos is sure to face a grilling on Capitol Hill, but lawmakers are limited in what they can do to stop the rule-making process. Once a rule is final, Congress can pass a resolution of disapproval to stop it from taking effect. But both the House and Senate must agree and have enough votes to override a presidential veto. There is little chance of that happening, this year or next.
While opposition to the proposed policy has generated the most headlines, it has plenty of support among civil liberties groups. Samantha Harris with the Foundation for Individual Rights in Education called the changes “a marked improvement over the previous guidance.”
“By taking the rights of both complainants and accused students seriously, these proposed regulations make important strides toward ensuring that complaints of sexual misconduct will be neither ignored nor prejudged,” she wrote.
One provision in the proposed regulations hasn’t gotten much attention but gives Christian colleges and universities something to celebrate. As we previously reported, based on a leaked draft of the changes, the new rules will end the practice of requiring faith-based schools to notify the Education Department that they’re taking a Title IX exemption. That will end the short-lived “list of shame” that tarred and feathered Christian institutions for their Biblical beliefs about gender and sexuality.