Saturday, November 17, 2018

House Democrats Will Fight Education Secretary Proposal On School Sexual Assault

Democrats vowed to use their Newfound Control of the House to fight Trump Administration Plans to Change how the Nation's Schools should handle Allegations of Sexual Harassment and Assault to give Ggreater Protection to those Accused of Wrongdoing. The move by Education Secretary, Betsy Devos, drew widespread Praise from Civil Liberties groups and Conservatives, however, setting up what's likely to be a High-Profile Confrontation between the Two sides.

DeVos said the long-awaited Proposal is aimed at ensuring Safety for all Students. But her effort to overhaul Sexual Assault Rules for Schools under Title IX, the Federal Law prohibiting Sex-Based Discrimination, has been among her most Controversial moves in Office, because it would allow for Victims to be Cross-Examined, Raise the Standard of Proof in such Cases, and let Schools Offer Mediation.

Democrats insisted they will fight the Proposed Regulation, which Civil Rights Groups and Advocates warned will create more Barriers for Students seeking Justice. While Democrats did not specify Hearings or other actions, they pledged they won't let DeVos move Forward. "Congress must not let this proposal become a reality,” said Rep. Carolyn Maloney (D-NY, 12th District), who has authored Legislation aimed at combating Sexual Violence on Campuses.

"Survivors of sexual assault deserve better—starting with the same protections as accused students in sexual assault proceedings and to live and learn in a community free of sexual violence," said Rep. Rosa DeLauro, (D-CT, 3rd District ), in line to become the next Chairwoman of the Subcommittee that writes the Education Department Budget. "Betsy DeVos is failing them in this regard, and if she does not get this right in the final rule, Congress needs to step up to return the proper balance.”

Rep. Maxine Waters (D-CA, 43rd District), expected to become the next Chairwoman of Financial Services, tweeted: "Betsy DeVos, you won’t get away with what you are doing. We are organizing to put an end to your destruction of civil rights protections for students."

Rep. Bobby Scott (D-VA, 3rd District ), expected to become the next Chair of the House Education and the Workforce Committee in the upcoming Congress, called the Proposal "a damaging setback" that "provides schools with numerous opportunities to evade responsibility for incidences of sexual misconduct." "I strongly encourage the administration scrap this proposal and join the effort to make college campuses and school classrooms safer and more welcoming for all students,” he said.

DeVos said her focus is on "ensuring that every student can learn in a safe and nurturing environment. That starts with having clear policies and fair processes that every student can rely on. 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.”, she said in a Statement.

DeVos' Proposal includes Language meant to assure Due Process: Accused Students are presumed Innocent until Proven otherwise. They should be given Written Notice of the Allegations against them and should have Access to Evidence gathered in Investigations. Both Parties would have the Right to Appeal Disciplinary Decisions.

The Proposal includes a Narrower Definition of Sexual Harassment than in the past, as Unwanted Conduct that is "severe, pervasive, and objectively offensive", and it would give both K-12 Schools and Colleges more Latitude in how they handle Allegations.

The Rules would let Schools use a Higher Standard of Evidence for Discipline Decisions related to Sexual Misconduct and offer Mediation if both Students agree to it. They would also hold Schools Responsible only for Allegations involving Misconduct on School-owned Properties or at School-sponsored Programs or Events, a Change the Administration stresses isn't meant to Create an "artificial bright-line" between Harassment occurring on or off Campus.

The Rules also maintain certain Requirements meant to offer Relief to Students who have been Harassed or Assaulted. They require Schools to respond meaningfully to All Complaints and encourages them to offer so-called Supportive Measures, Changes in Class Schedules or Dorm Room Assignments, for example, even if the Student does not want to file a Formal Complaint.

DeVos' move to Rescind the Obama Guidance last year was among her most widely Criticized Actions since taking Office. Drafts of the New Rules that leaked in recent months drew intense Pushback from Women's Advocacy Groups, who argued the DeVos Rewrite will mean more Obstacles for Victims reporting Assaults and could open the door for Retaliation against Students who do Report.

Notably, the New Rules would Guarantee Students the Right to Cross-Examine their Accusers, something Survivors' Advocates say is deeply Traumatizing. Students, however, can Request to be in Separate Rooms during the Questioning, which would be done through Third-Party Advisers, not between Students directly.

“This rule will return schools back to a time where rape, assault and harassment were swept under the rug," said Jess Davidson, Executive Director of End Rape on Campus. "It demonstrates Betsy DeVos and the Trump administration share the same attitude about assault that we saw from Senate Republicans during the Kavanaugh hearing — disparage and diminish survivors and discourage them from reporting.”

Men's Rights Advocates and Civil Liberties groups, meanwhile, have Cheered the Administration's Efforts, arguing the Obama-era Policies they are Replacing, which weren't Formal Rules though they were treated as such, led Schools to Trample the due Process Rights of the Accused.

"It’s important that allegations aren’t ignored and aren’t prejudged," said Samantha Harris, Vice President for Procedural Advocacy at the Foundation for Individual Rights in Education, a Civil Liberties group that was among the most vocal critics of the Obama Administration‘s Guidance. "It’s an unfortunate misconception that due process rights for the accused somehow undermine protections for complainants and those things are mutually exclusive,” she said. “Schools can have a process that is tremendously respectful to complainants and take those complaints seriously."

The Proposal kicks off a 60-day Public Comment Period, and the Administration may still tweak it before it becomes a Final Regulation, but it will carry the weight of Law once it does.

Sen. Lamar Alexander (R-TN), the Chairman of the Senate HELP Committee, said DeVos "has begun the appropriate public rulemaking process, including the opportunity for individuals to review and make comments for 60 days, to bring much needed clarity to the federal rules helping colleges protect the safety and rights of students."

But Sen. Patty Murray (D-WA), the Ranking Member of the Senate HELP Committee, said the Proposal is "another step toward sweeping the scourge of sexual assault under the rug" and urged "every woman, man, mom, dad, and anyone else who cares about campus safety and preventing sexual assault to make your voices heard and demand that Secretary DeVos and President Trump withdraw this proposal immediately."

CLICK HERE to read the 149 page (pdf) Rule Changes.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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