Newly proposed Department of Education policies for campus sexual misconduct obtained by the New York Times would require that Yale and other universities only adjudicate allegations of sexual misconduct that take place on campus, potentially preventing the University from investigating sexual misconduct at fraternities and other off-campus student housing.
A spokesman for the Department of Education told the Times that officials considering the proposal are still “in the midst of a deliberative process.” If formalized, though, DeVos’s new rules would clash with Yale’s policies on sexual misconduct, putting the University at risk of losing federal funding if it does not comply with the new guidance. For instance, the proposed rules obtained by the Times would require that Yale change its policies to offer the accusers and the accused in cases of alleged sexual misconduct the ability to cross-examine each other and acquire any evidence obtained during the investigation, regardless of relevance to allegations.
Current Department of Education policies also hold Yale accountable for investigating alleged incidents of sexual misconduct brought to the attention of First-Year Counselors and other individuals on campus designated as mandatory reporters. But under the new proposal obtained by The Times, the University would only be obligated to investigate formal complaints reported by victims to “an official who has the authority to institute corrective measures.”
According to the Times report, the Department of Education said that the leaked information from the proposal is “premature and speculative.”
University spokesman Tom Conroy declined to comment on the report, noting that the proposal has yet to be formally announced by the Department of Education. But Yale officials have noted before that they are keeping a close eye on DeVos’ plans for sexual misconduct policies on college campuses.
When DeVos announced in September 2017 that she would overhaul Obama-era guidelines for sexual misconduct on college campuses, Yale Title IX coordinator Stephanie Spangler said that Yale would “remain steadfast” in addressing incidents of misconduct “promptly and fairly.” Dean of Yale Marvin Chun told the News at the time that DeVos’ plan to change Obama-era guidelines was “troubling.”
But for Yale students accused of sexual assault, DeVos’ initiative offers new advantages. Saifullah Khan, who was found not guilty of sexual assault in March and is currently awaiting a decision by the University-Wide Committee on Sexual Misconduct for the same incident of alleged sexual assault that brought him into court, described DeVos’ proposals reported in The Times as “long-overdue” and “glad tidings” for him.
The new guidelines would also shift the definition of “sexual harassment” from the definition provided to colleges by Obama-era guidance to the one currently endorsed by the Supreme Court — “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” Obama-era guidance on sexual misconduct defined harassment as “unwelcome conduct of a sexual nature.”
Michele Dauber, a Stanford professor of law and public advocate for making university policies that deal with campus sexual assault more victim-friendly, said that the newly proposed rules are a “wish list” of changes desired by the men’s right movement and the association of University General Counsels, calling it a “get-out-of-jail-free card for college and universities.”
“The potential new rule changes under DeVos will only serve to silence survivors,” said Abby Leonard ’21, co-president of Unite Against Sexual Assault at Yale. “[Cross-examination] is reckless and gives no consideration to the re-traumatization that a survivor would endure in undergoing questioning by their attacker.”
But Cynthia Garrett, co-president of Families Advocating Campus Equality, an advocacy group for college students accused of sexual misconduct, called the Times “incredibly irresponsible” for publishing Department of Education proposals that have yet to be finalized.
She alleged that the purpose of the Times report was to incite protests against the Department of Education, in an effort to slow down DeVos’ efforts to alter Obama-era guidance on campus sexual misconduct.
“We know where the New York Times stands on this issue,” Garrett said.
Between Jan. 1 and June 30 this year, Yale’s Title IX office received 154 complaints — a record number.
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Correction, August 30: A previous version of this article incorrectly stated that Khan was found not guilty in February. In fact, it was in March.