US toughens rules for adjudicating campus sexual assault

The Trump administration has formally implemented new rules governing how US colleges handle sexual misconduct accusations against students, angering institutions that fear heavy-handed treatment of alleged victims.

The rules, first proposed by the administration in 2018, include requirements that would allow the live questioning of accusers and impose tougher standards for deciding guilt and punishment.

The changes will “ensure that schools can no longer inflict longstanding harm against students before providing basic, fair procedures”, US President Donald Trump said in a statement.

US universities have been largely opposed to the measures, arguing during the regulatory drafting process that the more adversarial format envisioned by the administration will discourage many assault victims from coming forward.

Lobby groups, including the American Council on Education (ACE) and the Association of Public and Land-Grant Universities (APLU), tried in recent weeks to win a delay on the grounds that coronavirus-related shutdowns make this a poor moment to impose such a consequential overhaul.

“Today’s release of these regulations, with an incomprehensible mandate to fully implement them by August 14, is as cruel as it is counter-productive,” the president of the ACE, Ted Mitchell, said in a statement. The Education Department usually gives institutions at least eight months to implement new regulations, he said.

The Trump administration accepted almost none of the substantive changes raised by the higher education community, said the APLU’s statement issued by its president, Peter McPherson.

US education secretary Betsy DeVos rejected the complaints. Speaking with reporters, she called the changes urgent, said that universities had plenty of time to prepare for them, and suggested that empty campuses offered a prime opportunity to work on implementation.

Congressional leaders also held to their respective positions, with Democrat leaders saying that the new rule endangers students and Republicans saying that the new policy balances the rights of both victims and the accused.

The presumed Democratic nominee for president, Joe Biden, also weighed in, promising the new regulations “will be put to a quick end” if he is elected. “Simply put,” he said in a statement, “this new rule gives colleges a green light to ignore sexual violence and strip survivors of their rights.”

Mr Biden has been confronted in recent days with a sexual assault allegation, which he has denied. Mr Trump has faced multiple such allegations, which he has also denied.

The Foundation for Individual Rights in Education − a pressure group that has been critical of both political parties, and of universities, on civil rights issues − has largely backed the Trump administration position on the change in sexual assault procedures.

The group said it has counted more than 600 lawsuits filed against colleges since 2011 for allegedly conducting unfair disciplinary processes, with many of the complaints proving successful in court.

Others suggested that such data overlooks the number of assaults never even reported by victims. The new rules, said Kim Churches, chief executive officer of the American Association of University Women, “will stack the deck against survivors, making it too onerous, even traumatic, for many to come forward”.

Along with introducing live questioning of victims, higher standards of evidence and narrower definitions of harassment, the administration’s new regulations relieve colleges of designating most of their employees as staff who are required to report sexual abuse allegations. It also bans the practice of lone investigators making determinations without a hearing.

The new rules require colleges to investigate off-campus behaviours if they occurred during official activities. That does not cover off-campus apartments, fraternity houses not formally recognised by the college or study-abroad periods.

The rules were created through the government’s formal regulatory process, which takes many months, but prevents their quick reversal by a subsequent administration without congressional approval.

The process largely gives presidential administrations the right to do as they see fit, within the confines of any applicable laws, albeit while forced to take public comments on the matter. This revision attracted about 100,000 public responses, an unusually large number, with most registering opposition.

paul.basken@timeshighereducation.com