INDIANAPOLIS — The Indiana Coalition to End Sexual Assault is criticizing a new proposal they say will hurt how colleges, universities and K-12 schools handle allegations of sexual misconduct among students.
“The proposed rule changes will dramatically and negatively impact protections and rights of victims, making it even harder for them to come forward for help,” read a statement from the Indiana Coalition to End Sexual Assault.
The U.S. Department of Education released its plan Friday under Title IX, the federal civil rights law that prohibits discrimination on the basis of sex in education programs or activities that receive federal funding.
Some have criticized how schools investigate sexual violence, including that schools use the “preponderance of the evidence” yardstick to determine whether a student is responsible for the sexual misconduct, which is a lower threshold than criminal cases.
Here are the key changes outlined below by USDOE:
- The proposed rule would require schools to respond meaningfully to every known report of sexual harassment and to investigate every formal complaint.
- The proposed rule highlights the importance of supportive measures designed to preserve or restore a student’s access to the school’s education program or activity, with or without a formal complaint. Supportive measures may include:
- Academic course adjustments
- No-contact orders
- Dorm room reassignments
- Leaves of absence
- Class schedule changes
- Where there has been a finding of responsibility, the proposed rule would require remedies for the survivor to restore or preserve access to the school’s education program or activity.
- The proposed rule would require schools to apply basic due process protections for students, including a presumption of innocence throughout the grievance process; written notice of allegations and an equal opportunity to review all evidence collected; and the right to cross-examination, subject to “rape shield” protections.
- Colleges and universities would be required to hold a live hearing where cross-examination would be conducted through the parties’ advisors. Personal confrontation between the complainant and the respondent would not be permitted.
- To promote impartial decisions, schools would not be allowed to use a “single investigator” or “investigator-only” model.
- Under the proposed rule, if a school chooses to offer an appeal, both parties can appeal.
- Consistent with U.S. Supreme Court Title IX cases, the proposed rule defines sexual harassment as 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.
- The proposed rule adopts the Clery Act definition of sexual assault and includes it in the definition of sexual harassment under Title IX.
“Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment,” said U.S. Secretary of Education Betsy DeVos. “That starts with having clear policies and fair processes that every student can rely on. Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined.”
The Indiana Coalition to End Sexual Assault said the plan will not balance the scales for survivors and those who can cause harm.
“But in fact, the rules place the rights of someone who causes the harm in higher regard than the rights of victims,” read ICESA’s statement. “According to the National Women's Law Center, students would have to endure more severe harassment before their school must respond than employees would have to endure before their employers would have to respond. The proposed rule changes stymies and stalls advances made in recent years to ensure that sexual assault victims on campuses across Indiana and the country are protected.”
ICESA considers the proposal a step backward, and encourages survivors, advocates and allies to make their voices heard during the public comment phase over the next two months.
Records show the USDOE currently has eight open Title IX investigations at Indiana colleges and universities including Ball State, Grace College, Valparaiso, Notre Dame, Purdue and IUPUFW—to determine whether the schools properly followed Title IX.
Earlier this year, the U.S. Department of Education’s Office for Civil Rights determined Indiana University did not violate Title IX in its handling of an alleged 2015 sexual assault involving two then-students.
USDOE has at least three open Title IX investigations at K-12 in Central Indiana including Hamilton Southeastern schools.
The Department’s proposed Title IX rule will be open for public comment for 60 days from the date of publication in the Federal Register.
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