Education Department moves to unravel Trump-era rule on campus sexual assault cases

The Education Department moved forward Tuesday with plans to revise a Trump administration policy aimed at counteracting what Trump officials considered to be colleges going overboard in punishing those accused of rape or sexual harassment on the nation’s campuses.

Education Secretary Miguel Cardona said the department will examine its policies under Title IX, the federal law prohibiting discrimination in education. The department is planning a public hearing, followed by issuing an official notice that the rules are under review.

And in a letter to colleges, Suzanne B. Goldberg, the department’s acting assistant secretary for civil rights, said the department will reexamine a controversial change by former Trump Education Secretary Betsy DeVos, that dictated last year how colleges should handle allegations of sexual assault and rape.

Reflecting a belief that “cancel culture” empowered liberal colleges to trample on the rights of the accused, Mrs. DeVos angered women’s groups and universities by requiring alleged victims of sexual assault to be subject to cross-examinations at disciplinary hearings. The rule also limited the jurisdiction of colleges to take action only on incidents that happened on campus, except for incidents involving university-sponsored activities such as fraternities and sororities.

The department is widely expected to cancel Mrs. DeVos‘ rule. The announcement that the department will reexamine the policy after President Biden ordered a review in a March 8 executive order.

Mr. Biden pledged during the campaign to undo Mrs. DeVos‘ rule. He said on his campaign website that the rule “rolled back the clock and given colleges a green light to ignore sexual violence and strip survivors of their civil rights.”

The department’s announcement marked the latest in a back-and-forth across three administrations over how to balance the rights of the accused while protecting victims of sex crimes at colleges. The Obama administration in 2011 issued a “dear colleague” guidance to schools instructing them to use the lower “preponderance” standard instead of the commonly-used “beyond a reasonable doubt” measure.

The Heritage Foundation, a conservative Washington, D.C., think tank, said colleges responded to the Obama administration’s signal by whittling away at the rights of the accused.

“This led to colleges barring an accused student from reviewing the evidence against him or cross-examining his accuser; refusing to allow an accused to hire an attorney or, when attorneys were permitted, prohibiting them from speaking on the accused’s behalf; and implementing other procedures that fly in the face of the protections typically afforded to someone accused of a crime,” the foundation said in a report when Mrs. DeVos changed course.

Mrs. DeVos said she was rebalancing the scales. She called her move “a new era in the storied history of Title IX in which the right to equal access to education required by law is truly protected for all students.” 

Her rule, she said at the time, “restores balance to the scales of justice in our schools, ending one of the most infamous and damaging overreaches of the previous administration.”

However, critics such as the National Women’s Law Center attacked Mrs. DeVos‘ change, saying that allowing potential rape victims to come under questioning would frighten victims away from reporting crimes.

The debate has become partisan, with Republicans backing Mrs. DeVos‘ vision and Democrats calling on Mr. Biden to undo it.

Rep. Virginia Foxx of North Carolina, the top Republican on the House Education and Labor Committee, blasted Mr. Biden’s executive order last month. 

“The right to due process is bigger than partisan politics — it is a cornerstone of American democracy. By overturning these stakeholder-vetted, court-supported rules, key protections for victims and the due process rights of the accused would be jeopardized,” said Ms. Foxx.

Frederick M. Hess, director of education policy at the American Enterprise Institute, a conservative Washington, D.C. think tank, blasted the expected reversal of the Trump administration rule.

“It’s disconcerting to see that the Biden administration has taken shots at the carefully crafted Title IX policy that emerged from former [Secretary] Betsy DeVos‘s careful, deliberate rule-making process,” he said in an email. “And it’s been worrisome that the president has, at times, voiced hostility to the kinds of due process protections that he demanded for himself when faced with allegations of sexual harassment on the campaign trail.”

But Fatima Goss Graves, president and CEO of the National Women’s Law Center, a progressive legal advocacy group, praised the move against a rule that the group said “radically weakened protections against sexual harassment in schools.”

“It’s overdue that the page be turned on Betsy DeVos and the Trump administration‘s deep mistrust of and hostility towards survivors,” she said.

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