U.S. Secretary of Education Betsy DeVos has written new sexual misconduct policies for college campuses that would decrease liability on the campuses’ part, increase the rights of the accused and provide more support for survivors, as first reported by The New York Times.
The new rules, made public by The New York Times on Wednesday, would extend beyond federal guidance for college sexual misconduct cases to include a narrower definition of sexual harassment and the steps campuses are legally required to take to address it.
UC Office of the President spokesperson Claire Doan declined to comment, saying that it would be “premature” to comment on these proposed policies at this time.
The rules would adopt the Supreme Court’s definition of “sexual harassment,” which defines it as “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.”
The new definition would be to the “detriment of survivors” because of its narrowed focus, according to ASUC External Affairs Vice President Nuha Khalfay. She added that this definition, along with the rule that excludes campus investigation of sexual harassment that occurs off-campus, will increase the burden on survivors.
“It’s really concerning because sexual harassment can take many different forms,” Khalfay said. “Sexual harassment not explicitly taking place in the classroom is still sexual harassment and is still harmful to survivors’ performance in school and their quality of life.”
According to these rules, schools would also only be held legally accountable for investigating formal complaints and responding to reports that school officials have “actual knowledge” of happening. This conflicts with the current standard, established in 2001, that allows action to be taken when a “school knows, or reasonably should know, about possible harassment.”
Another of the new rules would allow the accused party and their accuser to cross-examine each other in formal proceedings.
“These rules will make it less likely that people will come forward to seek resources,” said Sofie Karasek, co-founder of survivor advocacy organization End Rape on Campus. “There are already only two options for survivors — go through the formal reporting process or do nothing. It will be harder to access formal reporting, which is one of the only things that could help them feel safe, stop the behavior and have closure.”
Eva Hagberg Fisher, a campus doctoral candidate in visual and narrative culture, recalled her experience of being cross-examined by her alleged harasser’s attorney in her case against campus architecture professor Nezar AlSayyad, and said it was “one of the most traumatic experiences of my life.” She added that being cross-examined by the respondent personally would have been “so much worse” and could pose a “huge problem” should people without legal experience be able to cross-examine each other.
The new rules also encompass “supportive measures,” including “nondisciplinary individualized services” that are “nonpunitive, time-limited and narrowly tailored” so students can remain in school. These rules provide multiple options for survivors, including counseling, changes in class schedules and mutual restrictions of contact between the parties.
“The situation in our university and others isn’t perfect — they’ve had to take responsibility for faculty members and students committing sexual harassment,” Khalfay said. “We have been moving in the right direction, however slow, and a big concern is that these new policies would undo some of that really important work.”
