Secretary Betsy DeVos is about to release a new set of guidelines aimed at providing more protections to accused individuals when allegations of sexual assault and harassment are made. The exact timing of the release isn’t known, it could be later this week or next week, but the Washington Post reports the gist is that the new guidelines will guarantee certain procedural protections, like the right to cross-examine one’s accuser.
The most significant change would guarantee the accused the right to cross-examine their accusers, though it would have to be conducted by advisers or attorneys for the people involved, rather than by the person accused of misconduct. If requested, the parties could be in separate rooms during the cross-examination, an administration official said. They said this was done to bolster the due process rights of the accused while assuring that victims are not directly confronted by their assailants.
Apparently, there was some discussion at the White House of making the cross-examination a requirement in the process, but others in the administration argued against that. Jess Davidson, the director of the group End Rape on Campus tells the Post, “Most survivors would be unwilling to go through a process that allows the person who sexually assaulted them to cross-examine them, and rightfully so.” The current compromise requires a 3rd party to carry out any cross-examination, which seems like a reasonable accommodation. What was not reasonable was preventing the accused from ever getting to question the story told by their accuser, something which was happening at some colleges.
It’s also worth noting that Davidson has made some questionable claims about the planned guidelines before. When a draft of the plan leaked in September, Davidson wrote about it for the Post. Jazz Shaw responded to some of her claims at the time.
One of the big changes in the new guidelines is something everyone knew was coming, a change to the basic standard used to judge these cases:
The biggest may be the standard of proof required in assessing claims. Under the DeVos proposal, schools will be allowed to choose between “preponderance of the evidence” and the higher bar of “clear and convincing” evidence. The Obama guidelines had directed schools to use the “preponderance of the evidence” standard.
The regulation also will require schools to use the same standard in these cases as they use for other complaints, including those against employees and faculty. Many union contracts and other agreements with faculty mandate the use of a higher “clear and convincing” standard, several people said. So as a practical matter, most schools may be forced to apply the same higher bar for student complaints.
“It’s intentional,” said one person briefed on the rules. “It’s DeVos saying, ‘Yeah, you have a choice, but you can’t have a higher burden of proof for unionized faculty.’ ”
That last quote sounds accusatory, almost as if DeVos is doing something sneaky. But why would we want allegations of sexual assault by students to be held to a lower standard than allegations against faculty members? If union members deserve process protections from false accusations, shouldn’t other students get the same protections?
The new regulations will also clarify that universities can’t be held legally responsible if they fail to investigate a claim of harassment or assault unless the incident was reported to someone in a position to act. In other words, a student telling a professor about an alleged assault doesn’t put the school on the hook. The accuser would have to relate the allegation to a dean or office charged with handling such matters. Terry Hartle from the American Council on Education tells the Post, “What you want is schools being able to act in good faith without hearing that they’re going to be second-guessed by government bureaucrats later on.”
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