College campuses do not have invisible barriers against sexual assault and perpetrators need to be punished. But the federal government has struggled to set rules governing how colleges and universities investigate and sanction alleged perpetrators and set forth procedural rights. The US Department of Education issued revised guidelines earlier this month that were criticized by the Colorado Attorney General and others for deterring complaints from victims of sexual harassment and assault.
The Department of Education finalized rules that provide more rights to the accused, reduce legal liabilities for colleges and universities and restrict the types of cases that must undergo investigation. These are intended to replace policies from the last administration. The current Education Secretary revoked earlier rules because she found that they made schools deny rights to accused students.
The new federal rules will restrict the definition of sexual harassment. It will be defined as misconduct that effectively denies victim access to the school because the conduct was so severe, pervasive and directly offensive. Dating violence, domestic violence and stalking are added to the definition of sexual harassment.
The previous administration had a wider definition that included conduct that interferes with or limits a student’s access to the institution. This included unwelcome sexual advances, requests for sexual favors and sexual nonverbal or physical conduct.
Accused students would also receive more procedural rights. Both parties will have equal access to evidence obtained in the school’s investigation. Each party could bring an attorney or other advisor to a school hearing.
An accused student and victim could question each other during live campus hearings. Their representatives, however, will perform the questioning to avoid direct confrontation. Opponents nonetheless argue that this policy will make victims relive the trauma of the assault.
Colorado’s attorney general also objected because the state has effective policies that effectively balance the rights of the accused and support for harassment and assault victims. Colorado schools, according to the attorney general, should not face the unfair choice of keeping their policies or losing federal funding if they do not accept the federal guidelines.
Implementation of these rules may be delayed until campuses fully reopen. In the meantime, any victim of campus assault or harassment may seek legal representation to help assure that their rights are protected, and perpetrators are held accountable.