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The New Federal Rules Will Better Protect Students Accused Of Sexual Assault


There is mixed reaction today to new federal rules on how schools from kindergarten all the way through college must respond to cases of sexual assault and harassment. The Trump administration says their sweeping changes to Obama era guidelines will make the process fairer and help better protect accused students. But many others object both to the changes and to the timing. To talk about more details, we're joined now by NPR correspondent Tovia Smith.

Hey, Tovia.


CHANG: So first tell us what are some of these changes that have just been announced?

SMITH: So these are largely meant to address what DeVos calls the kangaroo courts that have been handling or, in her view, mishandling these cases, and most of the changes aim to beef up protections for the accused students. So for example, at the college level, schools must now allow live cross-examination of students by the other student's lawyer or representative, though DeVos was quick to say today that protections do go both ways.


BETSY DEVOS: Cross-examination is a - an important part of ensuring that the truth is found. And our rule is very sensitive to not requiring students to face one another. In fact, it specifically prohibits that, but it is an important part of ensuring that justice is ultimately served.

SMITH: Among the other changes - students must now have a right to appeal. Schools can now raise the bar for proving a case, meaning it will be harder to find a student responsible. The definition of sexual harassment would be tightened; so only if it's severe, pervasive and objectively offensive would it warrant investigation. But on the other hand, more is added. For example, dating violence and stalking would now count in terms of what schools must respond to. Also, the new rules clarify that schools are on the hook for off-campus incidents but only in places or events that the school is involved with. So for example, yes, frat houses but, no, off-campus housing - or school field trips, yes, but a house party, no.

CHANG: Well, listening to most of these changes you just listed, I mean, from the perspective - if individuals were accused of these assaults or accused of harassment, I imagine this is good news to them.

SMITH: Yes. In many ways, they say it will stop students from being presumed guilty just because they were unable to mount a proper defense or from getting kicked out of school based on scant evidence. As one advocate for the accused said to me today, you know, these expulsions can ruin a kid's life, and it should be hard to do that.

CHANG: Of course, I imagine survivors' advocates might see this all quite differently.

SMITH: For sure - they say this will make it less likely for alleged victims to report incidents because they may see it as either futile or re-traumatizing, for example, because of that cross-examination. Also, they object to the off-campus exclusion. One survivor advocate told me today that the majority of college students live off-campus, and that's where her alleged incident occurred years ago. And she was covered by Title IX back then. But in the new rules, she wouldn't be. And she says she would have had no other option but to drop out of school.

CHANG: So what are you hearing from the schools themselves? I mean, these are massive changes, and they couldn't have come at a more challenging moment.

SMITH: Exactly; schools are all-hands-on-deck right now just to manage their sudden switch to online learning because of COVID-19.

CHANG: Yeah.

SMITH: I spoke to a college trade association, and they call it madness that schools would be asked to do this in three months. In the best of times, they say, that would be overwhelming. And even putting that aside, they object to the very idea of schools being asked to run these intense, complex trials. As he put it to me, we want to teach not run courts. But DeVos replied today that civil rights can't wait. She says this may actually be the best time to make the change, and since there's no students on campus - but that all said, the courts may have the final word...

CHANG: Right.

SMITH: ...Because legal challenges are definitely coming.

CHANG: OK. That is NPR's Tovia Smith.

Thank you, Tovia.

SMITH: Thank you.

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Tovia Smith
Tovia Smith is an award-winning NPR National Correspondent based in Boston, who's spent more than three decades covering news around New England and beyond.