Proposed Rules Would Reduce Sexual Misconduct Inquiries, Education Dept. Estimates

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WASHINGTON — An analysis by the Education Department has found that its proposed new rules for handling allegations of sexual misconduct on campus would substantially decrease the number of investigations by colleges and school districts into complaints of sexual harassment, assault and rape, and save educational institutions millions of dollars over the next decade.

The analysis was conducted to study the effect of proposals drawn up by Betsy DeVos, the education secretary, to overhaul regulations governing Title IX, the federal law that prohibits sex discrimination in federally funded schools.

The proposed regulations, which have not been officially published but were previously reported on by The New York Times, seek to bolster the rights of students accused of sexual harassment, reduce liability for institutions and require schools to provide more support to victims.

The analysis, included in a draft regulation, uses limited data available to the department to estimate the nationwide impact of the proposed changes.

The department projected that colleges and universities currently conduct an average of 1.18 sexual harassment investigations each per year, and that under the new rule, the figure would fall to 0.72 investigations per year, a decline of 39 percent. There are about 6,000 colleges and universities nationwide.

While the average number of Title IX investigations is not tracked at the elementary and secondary school level, the department drew data on sexual harassment episodes from its most recent civil rights data collection to conclude that the school districts currently investigate an average of 3.23 episodes per year. That rate, they estimated, would decrease to 1.61 under the new rules, a decline of 50 percent. There are about 17,000 elementary and secondary school districts.

Among the most significant changes in the proposed rules would be the department’s move to clarify and narrow the scope of complaints that schools are obligated to investigate. The rules require that institutions investigate only formal complaints that are filed with an authority figure, and no longer require that schools investigate complaints alleging conduct that occurred off campus or outside their school-sponsored programs. The rules also allow schools to address more complaints through informal resolutions.

Those specific limitations, department officials wrote, would drive down the bulk of the complaints, and generate savings to the tune of $19 million for colleges and universities and $54 million for school districts. The entire regulation, the department projected, would save $327.7 million to $408.9 million over the next decade.

Elizabeth Hill, a spokeswoman for the department, said the regulation “is still under development, and therefore it’s too early to speculate the cost of a new rule.”

“The substance of our proposal will not be built on any supposed financial impact and has played no role in Secretary DeVos’s decision making,” Ms. Hill said. “Secretary DeVos has been clear that the rule must be built on protecting all students from unfair deprivation of their education, empowering complainants to seek a remedy that meets their needs, aligning regulatory requirements with the Supreme Court’s interpretation of Title IX, and reducing federal micromanagement of schools.”

The draft document has to be vetted by the White House’s Office of Management and Budget, which will conduct its own economic impact analysis before the department formally publishes the rule for public comment.

Victims rights advocates said the proposed regulations ignored the most significant cost.

“It strikes me that one thing that’s not included in the cost is the one in five women dropping out of school because their school won’t investigate their complaints of sexual violence, and that is a cost that affects everybody,” said Adaku Onyeka-Crawford, senior counsel for education at the National Women’s Law Center.

But Kimberly C. Lau, a lawyer who represents accused students at the New York law firm Warshaw Burstein, said equating the decline in investigations to a lack of regard for complainants “misses the big picture.”

“The decline in investigations may decrease the pressure on schools to be results-oriented in their approach and more focused on how the process is implemented,” Ms. Lau said. “If the department is focused on the process, then the right outcomes will naturally result one way or another.”

The proposed regulations would replace temporary guidance put in place last fall when Ms. DeVos rescinded a pair of controversial documents issued under the Obama administration that outlined how schools should meet their legal obligations to address episodes of sexual misconduct.

In its draft, the Education Department wrote that the Obama-era guidance “made institutions liable for conduct of which they were unaware,” and that the rules exceeded existing laws by “requiring institutions to respond to conduct less severe than proscribed by Title IX.”

The Obama-era guidelines were hailed by supporters for aggressively protecting victims — but were not legally binding — and assailed by critics as trampling on the due process rights of the accused.

In the days after Ms. DeVos’s newly proposed regulations were publicized, Obama officials denounced the characterization of their efforts.

Catherine E. Lhamon, who led the Education Department’s Office for Civil Rights in the Obama administration, said the impact analysis showed that the new administration was “aspiring to reduce the number of times a school investigates, rather than aspiring to reduce the number of harms that students experience.”

In the draft analysis, Education Department officials wrote that they had not tracked how many schools had changed their Title IX enforcement practices after the September 2017 rescission of the Obama-era guidance, but believed that many had not.

Department officials wrote that while they anticipated 90 percent of elementary and secondary schools would save money as a result of the new requirements, they anticipated that only 50 percent of colleges and universities would because “various pressures will result in the retention of the status quo in every manner that is permitted under the proposed regulation.”

Department officials acknowledged that its estimates were based on several assumptions, and that concrete and uniform data on sexual harassment investigations was lacking. Officials said they hoped public feedback would refine their estimates.

The analysis also accounts for new costs that colleges and districts could incur. Although schools are not required to investigate every complaint, a Title IX coordinator is still required to respond to reports and provide support to victims, which the department anticipates will cost about $5 million. The rules require schools to offer victims a range of “supportive measures,” even if they choose not to file a formal complaint, such as counseling, changes in housing and other efforts that are devised to help them continue their education.

The impact analysis does not specifically account for how investigations could be affected by the narrower Supreme Court definition of sexual harassment that the department plans to adopt. The new definition defines it as “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.”

The draft regulations would allow a school to dismiss a Title IX complaint if it does not meet the new definition of sexual harassment, even if the conduct is proved to be true.

The proposed regulations would hold institutions liable only for “actual knowledge” of a complaint, meaning that it was formally filed with an official with the “authority to institute corrective measures” on behalf of the school. The proposal would also require that schools be held to a new standard called “deliberately indifferent” in determining whether schools properly addressed complaints.

That standard, also drawn from Supreme Court precedent, means a school could be found in violation of civil rights law “only if its response to the sexual harassment is clearly unreasonable in light of known circumstances.”

Among the questions the department plans to pose to the public are whether some parts of the rule should apply only to higher education versus elementary and secondary schools, and whether they should be adjusted for specific groups like employees and students with disabilities.

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Proposed Rules Would Reduce Rape Investigations, Education Dept. Says
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