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College campuses will more closely resemble the rest of American society under the U.S. Department of Education's proposed rules for handling sexual harassment and sexual assault allegations.
Education Secretary Betsy DeVos and her administration unveiled a series of draft regulations interpreting Title IX on Friday morning. While they triggered opposition from some victims' rights groups, the rules seek only to restore fundamental fairness and replace illegitimate campus kangaroo courts with a deliberative quasi-judicial process.
"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," wrote Samantha Harris, the Foundation for Individual Rights in Education's vice president for procedural advocacy.
The DeVos rules narrow the definition of what constitutes sexual harassment. While Obama-era guidelines prohibited "unwelcome conduct of a sexual nature," the draft regulations use the Supreme Court's definition of sexual harassment: "Unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school's education program or activity."
Those definitions matter. Under the previous guidelines, which DeVos rescinded a year ago, many schools loosely defined clumsy come-ons and dirty jokes as sexual harassment. At public colleges and universities, which are legally required to uphold free speech rights, this unnecessarily pitted Title IX against the First Amendment.
A fleeting remark does not qualify as harassment. In American jurisprudence, there is no such thing as the right to be free from words we find offensive. Harassment occurs when an individual is targeted by a continuing pattern of unwelcome behavior. Once campuses can grasp the difference between free speech and harassment, they can better educate students on the former and more effectively deal with the latter.
The most substantial changes deal with Title IX hearings on sexual misconduct claims. DeVos' rules seek to end the single-investigator model, under which a lone administrator interviews students and passes judgment. Colleges would be required to provide a separate decision-maker, whether it's an individual or a panel.
Accusers and the accused would gain cross-examination rights. To prevent victims from being re-traumatized by their alleged assailants, attorneys or advisers for each party would handle the questioning. This reflects growing legal consensus that colleges cannot provide meaningful due process without cross-examination.
FIRE, the nation's preeminent legal advocacy group for college free speech and due process rights, calls the draft regulations a marked improvement, but notes that they are imperfect. There are still some kinks to be worked out.
"Under the new rules, both the accuser and the accused will still be able to appeal the outcome of a Title IX decision," notes Reason magazine's Robby Soave. "Civil libertarians opposed this idea. In the criminal justice system, only the defendant can appeal a guilty verdict; holding an additional trial after a finding of innocence constitutes double jeopardy."
The Title IX regulations aren't yet set in stone. Unlike the Obama-era guidelines, which were set forth in a 2011 "Dear Colleague" letter and received sweeping deference without being legally binding, DeVos' rules will undergo a review and comment process and will have the force of law once enacted.
Overall, the rules represent an effort to restore procedural fairness to campus tribunals that have long lacked the legitimacy of the trials they mimic.
"FIRE has long argued that everybody on campus benefits from fundamentally fair proceedings," Harris wrote. "While not perfect, the proposed regulations indicate the federal government's recognition that students accused of serious misconduct are entitled to meaningful due process rights, and the proposed regulations include a number of important procedural protections that will improve the integrity of the process for everyone."
It's unfortunate that some victim advocacy groups and legal organizations that should know better -we're looking at you, American Civil Liberties Union - have mischaracterized the reforms as tilting the scales toward the accused. That's disingenuous. Opponents of sexual harassment and sexual assault must understand that due process is a prerequisite for a finding of responsibility in a campus court to carry any weight.
While the realities of campus life require administrators to grapple with legal claims for which they're ill-suited, our message to sexual assault survivors remains the same. Rape is a violent felony, not a student code of conduct violation. Call 911 and report crimes to the police before dealing with college bureaucrats.
Rapists belong in prison, not on academic probation.