The U.S. Department of Education (DOE) today released its long-awaited Title IX proposed regulation on how schools should handle sexual violence and harassment allegations made by students against other students, which advocates labeled "disgraceful."The rule replaces less formal Obama-era guidelines that gave broader protections for survivors of sexual harassment with an official rule that will carry the full force of law after an upcoming public comment period is completed".
Sexual harassment investigations may also only be mandatory if the incident occurs on university property during an education activity.
The proposal came under immediate fire from women's rights groups and Democrats, who said the rules would allow assailants and schools to escape responsibility for harassment and assault and would make college campuses less safe for women.
DeVos previously said the existing rules were too prescriptive, pressuring schools to take heavy action against students accused of misconduct without giving them a fair chance to defend themselves.
The regulation also specifies that even if no formal complaint is filed, the school must offer the accuser supportive measures.
"Finally they're issuing rules to reinforce the rights that already are well established and should be uniformly applied", said Mark Hathaway, a Los Angeles attorney who has represented more than 150 students accused of sexual misconduct.
According to the National Sexual Violence Resource Center, more than 90 percent of sexual assault victims on college campuses do not report an assault, and 89 percent of USA colleges reported zero incidents of rape in 2015 - an incredible statistic that illustrates how many victims likely stay in the shadows, experts say. "We fully intend to continue our efforts to reject sexual violence in our community, to support survivors, to hold perpetrators accountable and to have fair adjudication processes".
"Sexual assault or sexual violence is challenging to prosecute in the criminal (justice system)", she said. Chief among them, it says accused students must be able to cross-examine their accusers, although it would be done through a representative to avoid personal confrontations.
Research shows that individuals who experience assaults on campus may have a history of being sexually violated prior to arriving at college, Smith said, noting that the new Ed Department regulations are "setting up a person who is disabled psychologically and physiologically by their trauma" to adhere to a narrow definition of sexual misconduct.
Data from November 2, the most recent available, show the Education Department's Office for Civil Rights had 125 pending sexual violence investigations and 160 pending sexual harassment investigations. Convictions may also require the accuser's team to meet the clear-and-convincing standard of evidence, not the far lower bar of preponderance-of-the-evidence.
In addition, the alleged incident would only have to be investigated if it took place on campus or during a school-sponsored event.
The proposed rule will be open for public comment for 60 days from the date of publication in the Federal Register.
DeVos says the goal is to clarify the obligation of a school, dealing with sexual misconduct accusations. Given the "he said, she said" nature of many of these allegations having a back and forth of the saids seems entirely reasonable. But if a school acts "deliberately indifferent" toward a case, the Education Department would only have to punish it "if its response to sexual harassment is clearly unreasonable in light of the known circumstances". They would address due process, in this context, for the first time.
Among the most significant changes is that schools can make it harder to prove allegations by raising the level of proof needed.
Meanwhile in San Jose, hundreds joined in a gathering called the Youth Climate Action Summit, organized by and for high school students at the Tech Museum of Innovation. But the process of directly interrogating someone who has experienced sexual assault is often daunting enough to re-traumatize them - or deter them from reporting it altogether.