Education Secretary Betsy DeVos’s proposed changes to the ways that universities and schools handle sexual assault, which give more rights to the accused and give institutions more leeway to brush complaints aside, have largely been finalized. And the (almost) final version, according to the Washington Post, is as bad as advocates feared, remaining largely unchanged from the slew of controversial amendments that DeVos championed in November of last year.
Among the most significant changes to Obama-era guidelines is a new definition for sexual harassment and assault under Title IX. According to the Post, the new regulation defines harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity,” a significant change from the previous, and broader, definition of harassment as “unwelcome conduct of a sexual nature.” The implications of this shift are huge—schools, which already investigate a paltry number of Title IX complaints each year, would now be allowed to dismiss harassment complaints that are found through an investigation to have occurred, but were not severe enough to qualify under the new definition. As the National Women’s Law Center’s Neena Chaudhry told Jezebel in 2018, “They’re saying that schools don’t have to respond, essentially, until harassment reaches a level that it denies the students equal access to education, which means that they will be able to ignore lots of incidences of harassment that may not reach that level.”
While the text of the finalized version has yet to be released and it still needs to go through an interagency review, the Post reports that it also includes another heavily criticized provision that would require universities to allow the student accused of harassment or assault to cross-examine their accuser. While DeVos has stated in the past that these changes are meant to provide “due process” and to limit “the risk of improperly punishing students,” the impact, as many advocates and survivors have pointed out, will be to discourage students from filing a formal Title IX complaint.
There is one significant change from the proposal, which originally stated that universities are only obligated to investigate incidents of sexual assault that occur on campus; the final version of the Title IX regulation, per the Post, “is expected to modify this language to make clear the rules cover a broader range of incidents.”
Given that even the DOE’s own analysis of the draft version of the new rule found that it would lead to schools and universities to conduct far fewer investigations of sexual harassment, assault, and rape, with the amended rules DeVos is giving a big fuck you to survivors of assault, who already have to confront institutions that oftentimes mishandle assault cases, try to out survivors, and actively discourage survivors from filing complaints. In championing the rights of the accused and giving more room to university officials to brush off complaints, DeVos is demonstrating, once again, where her sympathies lie.