The proposed rules, once officially released, will have to go through a lengthy process before they’re approved, but if they hew closely to the interim guidance the administration introduced last fall and the proposed regulation reported by the Times, they could dramatically change the landscape of campus sexual-assault investigations.
The uncomfortable truth about campus rape policy
So, what could the new rules look like in practice? Let's examine a hypothetical scenario where a student is assaulted at a college party after these proposed rules take effect. Here’s what might happen next:
If the party is on campus
The university is required to investigate the allegation, provided that the alleged victim reports to the correct administrative official.
If the party is off campus
The college is not legally required to investigate. Spaces that fall outside university jurisdiction under DeVos’s new rules include off-campus housing, off-campus fraternity houses, and local bars and restaurants. Under the Obama administration guidance, schools were expected to investigate any assault that occurred between two students, regardless of where the assault took place.
Many—if not most—incidents of campus sexual assault and harassment occur off campus, says Sage Carson, a manager at the nonprofit Know Your IX. Eighty-seven percent of U.S. college students live outside campus bounds, and it’s common for assaults to take place in a student’s place of residence. Accusers at community colleges, where, in most cases, all students live off-campus, will be particularly affected by this clause in DeVos’s rules.
If the alleged victim reports the incident to “an official who has the authority to institute corrective measures”
The university becomes legally “accountable” for the complaint, and is required to look into it. At this point, the alleged victim can either drop the complaint, enter into an informal mediation process with the alleged perpetrator, or start a formal disciplinary process.
If they do not report to “an official who has the authority to institute corrective measures”
The university is not required to investigate. It’s not yet entirely clear which campus administrators, and possibly professors, would qualify as officials with this kind of authority—and how, or if, the university would convey that information to students. If the alleged victim reports the incident to the residential advisor in their dormitory, a peer sexual-assault advocate, or another school employee who is not a designated “official,” the university bears no responsibility for the complaint. Under Obama-era guidance, a school had a responsibility to look into an alleged incident of sexual abuse if the institution knew, or reasonably should have known, about the allegation. That meant that if an alleged victim reported to an RA, the school was usually on the hook.