The most protested part of the Obama administration guidance was the mandate that schools use the preponderance-of-evidence standard, the lower standard of the two, in determining whether those accused should be disciplined or expelled. The Trump administration rules propose that a school’s choice of evidentiary standard must apply to any investigation of civil rights violations.
The rules also maintain Ms. DeVos’ year-old policy of using mediation to reach informal resolutions, and would add the ability for victims and their accused perpetrators to request evidence from each other and to cross-examine each other. The rules also allow the complainant and the accused to have access to any evidence obtained during the investigation, even if there are no plans to use it to prove the conduct occurred.
The Obama administration held that mediation was not appropriate, even if voluntary. The Obama administration also strongly discouraged parties from personally questioning each other during hearings, believing it would be “traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.” The previous administration also recommended that schools provide an appeals process.
The new rules would adopt a new Supreme Court definition of “sexual harassment” that appears to be reserved for repeated complaints or the most egregious allegations. The new rules would define sexual harassment to mean “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.”
In its guidance, the Obama administration defined the act more broadly as “unwelcome conduct of a sexual nature,” that includes “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”
The proposed regulations do not define what constitutes a “hostile environment” for victims as previous guidance did, but does allow a school to remove an accused person from campus after conducting a safety and risk assessment.
The new rules would require that institutions only be held legally responsible for investigating formal complaints and responding to reports that school officials have “actual knowledge” of happening. A formal complaint is one made to “an official who has the authority to institute corrective measures,” not, for instance, a residential adviser in a dormitory.
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