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DeVos moves the pendulum on how colleges deal with sexual assault

The Trump administration has announced new rules governing how colleges respond to allegations of sexual assault and harassment. The changes broaden rights for those accused of misconduct and narrow the definition of sexual harassment. But will they discourage victims from coming forward? Amna Nawaz speaks to Scott Jaschik, editor at Inside Higher Ed, for more on this policy “pendulum swing."

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  • Judy Woodruff:

    The Trump administration today proposed new rules on how colleges must investigate allegations of sexual misconduct, harassment and assault.

    As Amna Nawaz explains, guidelines enacted by the Obama administration that expanded protection for victims and accusers were already rescinded by Education Secretary Betsy DeVos. Now she's laid out new standards.

  • Amna Nawaz:

    It's a dramatic change in many ways, one that DeVos says balances the rights of the accused, and that some colleges say is overdue. Some women's groups argue it's a major rollback. Among the changes: The rules narrows the definition of sexual harassment to conduct that is severe, pervasive and objectively offensive. The prior guidelines defined it as unwelcome conduct of a sexual nature.

    Accused students could bring lawyers to misconduct hearings and would have the right to cross-examine, although the parties could not question each other directly. It also gives schools more flexibility, and limits the number of cases they have to investigate.

    DeVos said the proposed rules are grounded in the principles of due process.

    Scott Jaschik is the editor of Inside Higher Ed, and he joins me now.

    Welcome to the "NewsHour."

  • Scott Jaschik:


  • Amna Nawaz:

    So, I want to ask you about one of those things, the school's responsibility, first.

    Vice President Biden, former vice president, issued a statement in response to the new rules today.

    He did say this: "Today's proposed rollback would return us to the days when schools swept rape and assault under the rug and survivors were shamed into silence."

    There were changes in terms of how school should respond, when they have the responsibility to respond. What's different with the new rules?

  • Scott Jaschik:

    So, with the new rules, you have different measures of guilt, different measures of what is covered by the rules, and different rights for the accused.

    But I think there's a key point here, which is that, prior to the Obama administration, there were in fact case after case, decades, many would say, in which women who brought such accusations were ignored, particularly if the cases involved athletes or powerful individuals.

    That doesn't mean that Obama got it right or that DeVos is getting it right or wrong. But there have been problems with this issue for a long time. And for much of the time, it was the people bringing charges who were ignored or mistreated.

  • Amna Nawaz:

    So, in this case, specifically when it comes to school responsibility, for example, is it fair to say that it limits the number of cases they actually have responsibility to investigate?

  • Scott Jaschik:

    Yes, although it's unclear exactly how this will play out.

    But the new rules would say that it has to be sort of a direct college program. Now, some fear this would eliminate any complaints about off-campus conduct. The rules issued today make a point that it's not just geography, but there are a number — was that — the definition of sexual harassment that you mentioned.

    All of these things mean fewer cases would actually go forward.

  • Amna Nawaz:

    That definition change, too, a lot of people are wondering, were there are a lot of frivolous claims brought before under that broader definition that necessitated more specific language?

  • Scott Jaschik:

    I would question that, because, frankly, any woman who brings a complaint is subject to a lot of time, energy and may be mocked and not believed.

    I don't think people bring complaints just for the hell of it. This is a difficult thing for women to do.

  • Amna Nawaz:

    Also, getting to the point of cross-examination, which has caught a lot of people's attention, what are people saying about what the impact be of a new rule like that in terms of people's willingness to come forward?

  • Scott Jaschik:

    Well, that's the thing.

    A lot of these cases, the women are choosing to go to campus, as opposed to the police, because they want a speedier, more supportive process than they might get from the judicial system. And cross-examination for a victim of sexual assault can be very traumatic, and it can be discouraging.

    And what people are pointing out is, these are not, in fact, criminal proceedings.

  • Amna Nawaz:

    Well, the administration will say, look, we are adding rules and guidelines because they weren't that specific before. And when you have reliable outcomes, that will make people more willing to engage and come forward.

    What's been the response to that?

  • Scott Jaschik:

    I'm not sure most people agree with that.

    I think some people who are cheering these new regulations would be content with fewer cases coming forward. The reality is, there's also a broader discussion going on.

    Under the Obama administration, Vice President Biden, President Obama, others were speaking out, saying, this is a problem that women are being sexually assaulted, come forward, we will support you, campuses need to do more.

    They're hearing a very different message today.

  • Amna Nawaz:

    That due process messages is at the heart of a lot of this, though. And it is true that previous guidelines were pretty broad. There were some complaints about that.

    These new guidelines, they say, are rooted in Supreme Court precedent. There's an argument to be made for that, too.

  • Scott Jaschik:

    It's also true that colleges have messed up on due process in a number of cases. I don't think you can say due process isn't an issue.

    The question is, can you have due process in ways that also encourage victims to come forward? And I don't know that needs to be an either/or. I also think that, again, it's the general tenor. Are people encouraging people to come forward? Are people saying there is a real problem with sexual assault on campus, which I think there's substantial evidence that there is?

  • Amna Nawaz:

    Very quickly, do you feel that this tips the balance in favor of one side over the moving forward in these cases?

  • Scott Jaschik:

    It certainly is a pendulum swing away from support for those bringing charges toward the other side.

    But I would also point out, in this issue, I think there's going to be uncertainty, cases that are disputed. I don't think, under the Obama guidelines or under these, you had any sure thing of clarity in what would happen.

  • Amna Nawaz:

    Scott Jaschik, thank you for your time.

  • Scott Jaschik:

    Thank you.

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