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TRAVERSE CITY — Local voices have joined a critical chorus of those objecting to Education Secretary Betsy DeVos' proposed overhaul to the way colleges and universities handle sexual misconduct complaints.
The 150-page proposal adds protections for students accused of assault and harassment and narrows which cases schools would be required to investigate.
The plan scales back important Obama administration rules, while adding mandates that could reshape school disciplinary systems that have developed over the past decade.
Advocacy groups for victims say the Obama rules forced schools to stop sweeping the issue under the rug, while those supporting accused students said they tipped the scales in favor of accusers. Some colleges complained that the rules were too complex and could be overly burdensome.
Under the new plan, colleges would have to investigate complaints only if the alleged incident occurred on campus or in other areas overseen by the school, and only if it was reported to certain officials.
By contrast, current rules require colleges to review all student complaints, regardless of their location or how they came to the school's attention.
Doug Fierberg, who has a law practice in Traverse City, founded the Fierberg National Law Group, which seeks justice for victims of violence and misconduct in schools.
"A small number of men who believe they've been wrongfully found responsible is driving the dialogue," Fierberg said.
The proposal would tell schools how to apply the 1972 law known as Title IX, which bars discrimination based on sex in schools that receive federal money. It applies not only to colleges and universities, but to elementary and secondary schools.
Vicki Cook, vice president of finance and administration at Northwestern Michigan College, said that when and if the new rules go into effect the college will get guidelines on how they are to be enforced.
"The Department of Education will put out guidelines on how we should handle cases," Cook said.
Several provisions in the proposed rules are supported by groups that represent students accused of sexual misconduct. Chief among them is a provision that states accused students must be able to cross-examine their accusers, although it would be done through a representative to avoid personal confrontations.
The U.S. Department of Education says the proposal ensures fairness for students on both sides of accusations, while giving schools flexibility to support victims even if they don't file a formal complaint or request an investigation.
Experts say it could dramatically reduce the number of complaints that get investigated by schools. Saunie Schuster, a lawyer who advises a range of colleges, said the vast majority of complaints arise off campus and would no longer need to be addressed by schools, although colleges could still go beyond minimum requirements.
Opponents say they fear fewer victims would report assaults under the new rules, and that more would simply drop out of school.
"This is one of the most under-reported crimes," said Juliette Schultz, executive director of the Women's Resource Center. "Making it harder to report is not what we want to do. Putting up barriers is not what we want to see happen."
But supporters say the proposal does a better job providing equal treatment to all students. They praised rules saying that both sides must be able to review evidence collected by the school, and that both sides would get the same option to bring a lawyer or other adviser to campus hearings.
"I don't think that providing meaningful due process for accused students and taking the claims of victims seriously — and adjudicating them fairly — are inconsistent," said Samantha Harris, vice president for procedural advocacy at the Foundation for Individual Rights in Education, a civil liberties group in Philadelphia.
Another group that supports accused students, Families Advocating for Campus Equality, sees the proposal as a victory, especially its requirement that schools weigh cases at live hearings with cross-examinations.
"You don't want respondents or complainants grilling each other, I don't think that's appropriate," said Cynthia Garrett, co-president of the group. "But having an advocate who can do so will go much further toward helping decision makers actually reach accurate results."
Fierberg said giving representatives for accused students the opportunity to cross-examine their accuser is daunting and will interfere with reporting.
"For decades girls and young women have been trying to seek justice in a system that has flaws," Fierberg said. "The numbers of men found wrongly responsible is negligible and is not worth the time spent writing the new regulations."
For years, schools have relied on a series of letters issued by the Obama administration instructing them how to respond to complaints. Missteps could bring federal investigations that often last years, with penalties as high as a total loss of federal funding.
DeVos rescinded two guidance letters in September 2017, declaring that "the era of 'rule by letter'" was over.
In its place, she recently issued the proposal, which will go through a 60-day public comment process before it can be finalized.
DeVos' plan is also likely to cut down on actions taken by the Education Department, which can penalize schools for failing to uphold Title IX. It raises the bar for proving that failure, saying schools must be "deliberately indifferent" to be held legally liable.
As of Nov. 16, the Education Department said it was investigating 387 Title IX complaints involving sexual harassment or violence at the college level, along with 296 at elementary and secondary schools.
Catherine Lhamon, who led the Education Department's civil rights division under Obama and helped develop existing rules, told The Associated Press the new proposal is "devastating" and would take schools back to "a very dark time."
"It would encourage schools to just stick their heads in the sand," she said. "It promises schools that if they follow specific, very minimal steps, then they cannot be found liable for violating Title IX, and it sets an astonishingly low set of expectations."
Democrats have vowed that now that they have control of the House of Representatives they'll fight the proposal.
Virginia Rep. Bobby Scott, the top Democrat on the House Education and the Workforce Committee, urged DeVos to scrap the proposal, which he called "a damaging setback for our efforts to prevent campus sexual harassment and assault."
Among other changes, the proposal narrows what constitutes sexual harassment from "unwelcome conduct of a sexual nature," to unwelcome sexual conduct that's so severe it effectively denies the victim access to the school or its programs.
It allows schools to use a higher standard of proof when weighing cases. The Obama guidance told schools to use a "preponderance of the evidence" standard, meaning the allegation is "more likely than not" true. The new proposal would allow a "clear and convincing" standard, meaning the claim is highly probable.
Even if victims don't file a formal complaint, the proposal encourages schools to offer a range of measures to help them continue their studies, including counseling, class schedule changes, dorm room reassignments and no-contact orders for those accused of harming them.
"We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process," DeVos said in a statement. "Those are not mutually exclusive ideas. They are the very essence of how Americans understand justice to function."
Collin Binkley, an Associated Press reporter, contributed to this report.
The public will have 60 days to comment on Title IX rule changes proposed by Betsy DeVos once they are published.
Visit regulations.gov, a federal government website, to find the document and make comments. It is not known when the document will publish, a spokesperson at the website said.
People can also visit ed.gov and find proposed Title IX rule changes under the "press releases" tab. Click on the document and scroll to the bottom to find the entire document or a summary of the rule changes.