As the Department of Education develops its overhaul of policies for campus adjudication of sexual misconduct, Yale’s lobbyists have flocked to Washington to advocate against the department’s push to protect the rights of the accused.
Since Secretary of Education Betsy DeVos announced plans in Sept. 2017 to rescind the Obama-era “Dear Colleague Letter” that established a liberal evidentiary standard in campus sexual misconduct adjudications, Yale’s lobbying disclosure forms reveal that the University has lobbied against regulations in three of the last four quarters.
In the wake of DeVos’ announcement, reports have emerged that her administration is reconsidering other Obama-era regulations for campus sexual misconduct adjudication. On Wednesday, The Washington Post reported that by Thanksgiving, the DeVos administration would release even more stringent requirements for how universities address sexual misconduct complaints. Many of the leaked new policies — including a requirement that complaints must be filed through authorities and that the allegation must have occurred on the university’s campus — challenge Yale’s own policies for handling sexual misconduct cases.
The most recent lobbying disclosure form filed with the Federal Election Commission states that Yale spent a total of $140,000 on lobbying between July and September of this year. According to the filings, legislation on the lobbyists’ itinerary included “potential regulations on Title IX.” In an email to the News, Associate Vice President for Federal and State Relations Richard Jacob said Yale, along with its peer institutions, has communicated with the Office for Civil Rights about current campus policies for addressing sexual misconduct.
“The American Council on Education and other higher education associations have engaged the Secretary of Education and the Office for Civil Rights on behalf of the higher education community to discuss campus policies and to raise concerns about the proposed changes in federal guidance concerning Title IX,” Jacob said in the statement to the News.
According to its most recent disclosure filings, Yale has also lobbied for “provisions concerning the prevention and adjudication of campus sexual misconduct” in the Campus Accountability and Safety Act. The bill, introduced in 2014, would require universities to develop a uniform process for adjudicating sexual misconduct and institute stiffer penalties for Title IX and Clery Act violations. The University has lobbied for the act in all but one quarter since mid-2014. According to the reports, the University specifically supported provisions of the bill related to establishing campus support services, mandating campus personnel training and implementing a climate survey.
Currently, the University investigates any alleged incidents of sexual misconduct brought to the attention of mandatory reporters on campus, including first-year counselors and community consent educators. But under the new proposal obtained by The New York Times this August, the University would only be obligated to investigate formal complaints reported by victims to verified authorities.
The Times report also stated that the leaked proposal mandates a cross-examination between the accuser and the accused, an apparent contradiction to the way the University Wide Committee on Sexual Misconduct adjudicates sexual misconduct cases. If the University fails to comply with the new policies once they are formalized, Yale could be at risk of losing federal funding.
In the email to the News, Jacob said the University has discussed DeVos’s proposed guidelines with congressional offices. He added that Sen. Richard Blumenthal LAW ’73, D-Conn., wrote to DeVos in October expressing “serious concerns about the leaked draft of the proposed rule.”
But Yale’s lobbying efforts may be an early defense against lawsuits that may arise from men disciplined for sexual misconduct if the DeVos proposal is formalized, according to Katharine Baker, an expert on campus sexual assault and a professor at the Chicago-Kent College of Law. She added that the Department of Education’s push to protect the rights of the accused has already emboldened lawsuits from men accused of sexual misconduct alleging gender discrimination under Title IX. Yale is currently defending itself against a lawsuit from Jack Montague, the former men’s basketball captain who was expelled for “penetration without consent” in 2016. The University has already settled three similar Title IX suits. Baker explained that by lobbying against the DeVos Proposal, the University is advocating for more freedom to determine its own policies.
“There is a decent likelihood that schools like Yale want the regulations written in ways that will make it clear that taking disciplinary action against someone found to have been responsible for sexual misconduct, or initiating an investigation against someone who is eventually found not responsible for sexual assault, should not be considered discrimination under Title IX,” Baker said.
Since the Times leaked the DeVos proposal in August, University administrators reaffirmed Yale’s commitment to maintaining current policies for addressing sexual misconduct.
In an interview with the News last month, University President Peter Salovey said he was confident that the University’s current sexual misconduct policies are more effective than the Department of Education’s reported new guidelines.
“We certainly think the approach we have taken, while not perfect, is effective and appropriate,” Salovey told the News in October. “Our plans are to continue on the path we are on. … The approach we have taken is more appealing to me than some of what I’ve been hearing about … what the Department of Education is considering.”
In a statement to the News, University Title IX Coordinator Stephanie Spangler reaffirmed Yale’s “commitment to eliminating sexual misconduct on campus, through policies and programs that are effective and fair.” Spangler added that the Title IX Office will carefully review DeVos’s new guidelines upon release.
Harvard, Princeton, Stanford and the Massachusetts Institute of Technology are all members of ACE, which, according to Jacob, voiced concerns about the new DeVos proposal to the Office of Civil Rights on behalf of institutions of higher education. Still, according to FEC filings, Harvard, Princeton, Stanford and MIT did not lobby for Title IX policies between 2017 and 2018.
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