Changes are coming to colleges in the manner that they must address allegations of sexual harassment and assault. Purportedly, the new rules and regulations developed by the Department of Education provide uniform due process to students who are accused of sexual harassment or assault. Opponents argue that these new rules may have a chilling effect on reporting and that they favor the accused over the victim.
Under the new rules, a school may choose which standard of proof is required to find a student responsible for a violation and impose a sanction or punishment. The standard used may either be the “clear and convincing” standard or the lower“preponderance of the evidence” standard. The preponderance of the evidence standard, often considered to require a 51% certitude a violation has been committed, was utilized under the prior guidance. “Clear and convincing” is a higher standard, making it less likely that a student will be found to have committed a violation.
In addition, under the new standards, schools may permit live hearings and cross-examinations, raising concerns of victim retaliation and fear of reporting. A campus is a relatively small community with very little place to hide particularly if a victim is making an allegation against a notorious student such as a popular athlete. Victim advocates also express concern with a new, narrowed definition of what constitutes sexual harassment. Only a report that divulges sexual harassment that is, “severe, pervasive and objectively offense” will warrant an investigation under the new rules. This narrowed standard removes many complaints that may be objectionable to many but not rise to the permissible narrow type of complaint to be investigated. However, the new rules do provide that dating violence and stalking must be responded to.
Additionally, schools will only be required to respond to and investigate allegations of incidents that occurred on campus or in a location off-campus related to a school event. In some ways, this distinction is irrelevant when campus events and parties spill over into housing not owned operated by a university. For instance, if a victim attends a party at a fraternity house where alcohol is served and she interacts with her assailant, the incident would not be investigated if the assault itself occurred at a private apartment next door to the fraternity house.
The seeming expansion of rights for the accused in universities comes as the NCAA seeks to strengthen its own rules about sexual harassment and assault. The NCAA recently announced that its board of governors expanded the NCAA’s sexual violence policy to require athletes to disclose whether their conduct resulted in an investigation, Title IX discipline or criminal conviction for “sexual, interpersonal or other acts of violence.” Such information must be exchanged and confirmed when student athletes transfer from one institution to another and during the recruitment process. Under the new Department of Education regulations, there may be less to report under the NCAA standard.
As the #metoo movement has changed the culture of reporting and responding to sexual assault and harassment, regulations struggle to keep pace with the rights of both victims and the accused. These new Department of Education regulations will likely face pushback from victim advocates for perceived favor towards the accused. It remains to be seen whether, in fact, a chilling effect occurs and the #metoo movement cools in the face of more stringent requirements in universities where many of these violations occur.