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The U.S. Education Department has formally released its revised guidelines related to campus sexual assault investigations. They are an important step toward ensuring due process for all students involved, while preserving protections for those who’ve suffered from sexual misconduct. This is the right balance.

The department, led by Education Secretary Betsy DeVos, has been crafting these reforms for more than a year. The proposed regulations were leaked late this summer, and while the final draft remains largely the same, officials did address several of the key concerns raised by victim advocates.

DeVos and her team at the department’s Office for Civil Rights, which enforces these Title IX rules, understood that guidance issued by the Obama administration had created an environment that essentially stripped due process from the accused in these campus tribunals. Title IX has been interpreted to apply in these cases, since the law prohibits discrimination based on sex in education programs that receive federal funding.

The lack of due process has resulted in a growing number of lawsuits against universities from students who’ve been unjustly punished following campus assault investigations, and the courts have made it clear the current process is failing students on multiple levels.

For those who have concerns about changing the framework, there is still time to voice opposition.

Since the Education Department is going about this the right way, and following the formal rule-making process, the proposed changes will now have to be publicly posted and the public will have 60 days to comment once the Federal Register publishes the document.

Department officials are then expected to respond to each comment. So this is far from over. But once the new regulations are set, they will hold the force of law.

“Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment,” DeVos said in a statement. “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.”

Some of the highlights in the proposed rule:

  • Schools would be required "to respond meaningfully to every known report of sexual harassment and to investigate every formal complaint." 
  • Schools would be expected to offer supportive measures, such as counseling or dorm re-assignment, "designed to preserve or restore a student’s access to the school’s education program or activity." 
  • Schools would need 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." 
  • "Colleges and universities would be required to hold a live hearing where cross-examination would be conducted through the parties’ advisers," to avoid personal confrontation.
  • "If a school chooses to offer an appeal, both parties can appeal."

Critics of these changes have reacted with outrageous claims that DeVos is attempting to keep rapists on campus and that she doesn’t care about protecting students from sexual assault.

We’d recommend opponents spend some time reading the extensive new guidelines. They offer campus administrators much-needed guidance, which should result in more transparent and consistent hearings. 

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