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Sexual assault and harassment procedures may change

On Behalf of | Nov 29, 2018 | College Campus Disciplinary Hearings

Federal law prohibits sexual discrimination under Title IX at schools receiving federal funding and governs their handling of sexual assault and harassment. The U.S. Department of Education is revising its rules to give additional rights to the accused, such as the ability to cross-examine witnesses in college campus disciplinary hearings.

The proposal is intended to clarify less formal guidance issued by the federal government in 2011. Critics claimed that these guidelines were biased in favor of accusers, while universities argued that they were confusing and too narrow. They also said that many colleges used a single investigator to gather evidence and make the final determination on charges without providing the accused with an opportunity to confront their accusers.

Earlier guidelines discouraged direct cross-examination. The proposal guarantees the right to cross-examine accusers. But, attorneys or advisors will need to conduct cross-examination instead of the person accused of misconduct. The parties could be in separate rooms, if requested.

A major change will govern the standard of proof for determining claims. Under the old standard, allegations had to be proven by the “preponderance of evidence,” or more likely than not standard. The proposed changes will allow colleges to use that standard or the higher “clear and convincing” standard.

The proposal will require the use of the same standard for all complaints. Many union contracts and other agreements require the use of that higher standard for their faculty and other employees.

Questions about the sexual history of the accuser will be prohibited, according to a source familiar with the proposal. Universities will also have more flexibility to make schedule changes or housing reassignments for accusers.

The definition of sexual harassment will be changed from unwelcome conduct of a sexual nature to unwelcome conduct based on sex that denies a person access to an education or program because it was so pervasively and objectively offensive. Also, universities would be held legally responsible for failing to investigate a complaint if it had actual knowledge of an allegation made to a person with authority to handle these complaints and not just any person, such as a professor or resident advisor.


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