Morgan McCaul knows what impact Betsy DeVos’ proposed overhaul of campus sexual assault investigations would have on victims. In mid-January, McCaul went to a…
Morgan McCaul knows what impact Betsy DeVos’ proposed overhaul of campus sexual assault investigations would have on victims.
In mid-January, McCaul went to a podium in a mid-Michigan courtroom and faced Larry Nassar, the former Michigan State University and USA Gymnastics doctor who sexually assaulted her and hundreds of other female athletes over decades. It was incredibly stressful and traumatic, she says. But Nassar, or his lawyers, couldn’t question McCaul.
«I truly can’t imagine the overwhelming fear that facing him with the possibility of interrogation would bring,» she told the Detroit Free Press Friday morning. «Every shred of emotion and anxiety that I felt seeing my abuser at his sentencing was under ideal circumstances. I got tremendously lucky.»
So when she looks at the proposed rules put forth Friday by the Department of Education, she says she knows what’s behind the changes. The new guidelines, which now enter a 60-day comment period, would narrow the definition of what sexual harassment is on campus and reinforce «due process» rights for students accused.
«I believe the new Title IX procedures defined by the Department of Education accomplish exactly what they set out to do: impose further strain on survivors of sexual assault and alleviate institutions of their responsibility to protect students and their safety,» McCaul said.
The new rules aren’t likely to be adopted until 2019 at the earliest, so they wouldn’t take full effect until 2020.
Under guidelines from President Barack Obama’s administration, sexual harassment was defined more loosely as «unwelcome conduct of a sexual nature.»
DeVos’ proposal creates three categories for harassment, including «unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program»; harassment in exchange for something, like a school employee’s tying an educational benefit to a person’s sexual conduct; and sexual assault.
The proposal limits who must respond to sexual assault complaints: Title IX coordinators at schools or an official authorized to take action. Schools would only be required to respond if the alleged incident occurred on campus or on areas overseen by the school, leaving out, for example, study abroad programs.
Key to the proposed changes are requirements that universities hold live hearings on accusations and allow representatives for the accused and accuser to cross-examine the other party.
That section of the ruling perfectly matches a ruling this fall in the U. S. Sixth Circuit Court of Appeals. In that case, which involved the University of Michigan, the court ruled emphatically that the only way to be fair would be to have both sides face off.
McCaul’s comments and feelings were echoed by groups and victims’ rights advocates from across the country.
“This rule abdicates the responsibility to protect every student’s right to safety on campus. It tells academic institutions that they needn’t bother helping to protect students; they won’t be liable,» said American Federation of Teachers President Randi Weingarten in a statement. «These changes once again demonstrate that students are not DeVos’ priority.»
The proposed rules, said Shilpa Phadke, vice president of the Women’s Initiative at the Center for American Progress, favor students accused of sexual misconduct. They will, she said, «
dissuade students from reporting sexual misconduct.»
More: Why sexual assault survivors are fuming over rumored college guidelines by Betsy DeVos
U. S. Senator Lamar Alexander, R-Tennessee, who chairs the Senate’s education committee, stood by the rules.
«The Department’s approach seems to balance fairness and support for survivors,» he said in a statement.
Many of the nation’s colleges and universities currently use a model where a single investigator conducts separate interviews of the person making the accusation and then the person accused. The two sides don’t have a chance to ask questions unless they appeal a decision.
In a court case this fall, a University of Michigan student was thrown out of school after being found to have violated the school’s sexual misconduct code. He sued, alleging the university did not give him his due process rights.
The appeals court agreed and was emphatic in writing about what it wanted to see.
«Due process requires cross-examination in circumstances like these because it is ‘the greatest legal engine ever invented’ for uncovering the truth,» the court wrote.
«Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’ story to test her memory, intelligence, or potential ulterior motives.»
DeVos said her rule changes would make sure the process is fair.
“Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment,” she said in a statement. “Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined.
“We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas. They are the very essence of how Americans understand justice to function.”
More: The conversation that is not happening about campus sexual assault
The proposed rules would bar the accuser and the accused from directly questioning each other. The back and forth would have to be done through representatives.
But that raises a whole set of issues, said Karen Truzwoski, a Michigan attorney who is currently representing women in two federal lawsuits against Michigan State University.
«I support due process for all parties as it’s done fairly,» she said. «A hearing can be OK if it’s done just for fact-finding and not trying to discredit the other side.
