Betsy DeVos' proposed Title IX regulations could alter Penn's sexual misconduct policies

United States Secretary of Education Betsy DeVos revealed new sexual misconduct regulations for schools this month, widening the rights of the accused, revamping how cases are handled, and reducing universities' responsibilities. If the guidelines are approved and implemented at universities nationwide, experts say Penn's current policies would be substantially altered. 

DeVos' rules will change the way universities meet their Title IX legal requirements, which The New York Times reported are the first regulations of this kind since the enactment of the 1972 anti-sex discrimination law.

The new regulations require full hearings, cross examination of sexual assault victims, and raise the standard of evidence to hold a student accused of sexual assault accountable.

After a 60-day comment period where the public can register their thoughts on the guidelines, the Department of Education will formalize the policies in a process which The Atlantic reported could take months or even up to a year.

Proponents of DeVos’ changes greeted the measures as a fairer process of handling such cases, while critics said the new rules would allow schools to take less responsibility for sexual assaults and deter victims from coming forward.

Terry Fromson, managing attorney at the Women’s Law Project — a public interest law center devoted to women — said the proposed regulations would make universities less safe.

“My concern has to do with how narrowly the proposed regulations define the responsibility of schools to respond to students who seek relief for sexual harassment,” Fromson said. “Because they would allow schools and the Department of Education’s Office of Civil Rights to ignore much of the sexual harassment that occurs in schools.”

Under DeVos’ new rules, Fromson added that Penn would not be required to investigate harassment and assaults that occur in off-campus fraternity houses and other off-campus residencies.

"These proposed rules seriously reduce what the school has to do and unfortunately take us back to the time when they did nothing — they're very concerning," Fromson said. 

Although schools can report stronger sexual assault standards, Fromson said the new standards offer no way to enforce if these stronger standards are actually occurring.

Stephen MacCarthy, Vice President of University Communications, said the University currently had no comment on the guidelines.

“We are still waiting for their final regulations to be published so that we can study the complete details of their new rules,” MacCarthy wrote in an emailed statement to The Daily Pennsylvanian.

Penn Law professor David Rudovsky, however, said the draft of the new DeVos guidelines makes “necessary adjustments” to protect due process in sexual misconduct disciplinary cases. 

Rudovksy said the most important change was the requirement for a full hearing and the opportunity for a “fair cross examination of all the witnesses who testify” — which he said was critical for a fair process.

Yet for many, the implementation of cross examination has raised fears among students that fewer victims will come forward. 

College junior Tanya Jain, programming chair of Penn Association of Gender Equality, criticized these changes and said it would likely deter survivors from reporting sexual assault.

“Cross examination during investigation can be extremely traumatizing for survivors,” Jain said. "To require it would again isolate survivors and make more difficult the already emotionally exhausting process of reporting [sexual assault]."

These concerns were echoed by Fromson, who said a live hearing along with cross examination can be “a very traumatic and intimidating experience” for a complainant.

Another major change under the new Department of Education guidelines is the ability of colleges to raise the standard of evidence needed to penalize a student in sexual assault cases. 

Under Obama-era regulations, sexual assault cases, including those at Penn, followed the phrase ‘preponderance of evidence', which is used in some civil cases and means it is more likely than not the accused is guilty. Yet schools can now choose to utilize a ‘clear and convincing’ evidentiary standard, which Rudovsky said is used by Penn in all other disciplinary proceedings.

“If it’s used when the accusation is the student has committed some kind of academic misconduct or is involved in a different kind of assault, not sexual assault, I don’t see why you would have two different standards,” Rudovsky said.

Fromson added that the standard adopted for sexual misconduct cases must be the same for other disciplinary actions, which could potentially spell the end of the ‘preponderance of evidence’ standard. However, Fromson sees this change as a mistake, as she said 'preponderance of evidence' treats both parties as equally truthful and equally at risk.

“Title IX is an equality statute. 'Preponderance of evidence' is an equality standard,” Fromson said. “The 'clear and convincing standard' is not an equality standard — it tilts the investigation in favor of the accused and against survivors.”

Critics worried the guidelines would absolve schools of many of their investigatory responsibilities.

“These new guidelines do not serve to support women or any survivor of sexual misconduct," Jain said. "Rape culture is one of the most pressing issues on college campuses today and these guidelines would only entrench rape culture further in our campuses.”