The prospective rules would leave it to schools to decide whether or not to have an appeals process and would add the ability for victims and the accused to request evidence and cross-examine each other, said Elizabeth Boyle, an organizer for Know Your IX.
“Put that very simply, that means your rapist may now be your interrogator,” she said.
But after a five-year federal investigation that found UNC in violation of Title IX in June, the suggested guidelines could spell a new era for the University’s practices dealing with sexual assault.
UNC declined to comment by the time of publication.
The investigation was launched in 2013 sparked by a complaint filed by four former UNC students, along with former administrator Melinda Manning. In June, the U.S. Department of Education’s Office for Civil Rights identified UNC’s violation and agreed on terms to correct the practices.
Manning, along with fellow complainants Annie Clark and Andrea Pino, appeared in “The Hunting Ground,” a 2015 documentary about sexual assault on college campuses.
The news about the proposed policies comes almost a year after DeVos rescinded the Obama administration’s 2011 Dear Colleague Letter, which outlined the enforcement of Title IX policies at higher education institutions. Until now, schools have relied on DeVos' interim guidance.
Unlike Obama’s guidance, the Trump administration’s new rules can go into law without an act of Congress after a public comment period.
“This is all premature,” Clark said. “We can speculate, but the concrete thing we do know is that there is something in the pipeline, and students will have an opportunity to comment and they should raise their voices when there is that opportunity.”
Boyle said once the advised regulations are made public, there will be a time frame of 60 to 90 days to submit official comments to the DOE. She said KYIX has a guide on its website on how to write and submit comments.
“We’re dealing possibly with the revocation of our rights,” she said. “We have to ignite that light under students and tell them this is their moment to have their voices heard and make sure for them and students to come, school will be a safer place.”
The Obama-era guidelines demanded colleges use the lowest standard of proof, “preponderance of the evidence,” when determining if a student is responsible for sexual assault. A preponderance of the evidence requires more than 50 percent of the evidence point to the accused’s alleged actions.
DeVos’ interim guidance allowed universities to abandon the standard and adopt the higher standard known as “clear and convincing evidence.” The new regulations would continue to allow schools to choose the evidentiary standard, according to the Times.
“The nature of sexual assault, I get it,” Hadley Heath-Manning, director of policy for the Independent Women’s Forum and UNC grad, said. “It’s harder to prove what happened behind closed doors. It’s often the case that two parties involved in an encounter have two stories about what happened, but if there’s a 50.1 percent chance that the accused party is guilty, then he or she gets a guilty verdict, and that’s just not fair.”
The proposed rules would also require schools approach investigations under the presumption that the accused is innocent until proven guilty, according to the Times. Shiwali Patel, senior counsel for education for the National Women’s Law Center, said this could tip the scale in favor of accused students.
“Then the presumption is that the complainant or the survivor is being untruthful until they're proven to be telling the truth,” Patel said. “That’s just inherently unfair.”
Emily Bullins, co-chairperson of UNC’s Preventing Violence with Sexual Health, said although the discussions leave students unclear about the University’s policy, UNC still has the same resources for students seeking help after an unwanted sexual experience.
She said students should visit the Gender Violence Services Coordinators located in the Carolina Women’s Center for confidential reporting.
“It is wrong to restrict campus resources for students who experienced an assault on campus,” Bullins said. “As a response to this new policy, PVSH will continue to advocate for survivors and connect them to resources for assistance after an assault.”