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Trump administration lawyers are defending their new rules on how campuses should handle cases of sexual assault. Survivors advocates have filed a federal lawsuit arguing that the guidance that replaced Obama-era rules now discriminate against women. Here's NPR's Tovia Smith.
TOVIA SMITH, BYLINE: Last fall, Education Secretary Betsy DeVos scrapped rules she said were forcing schools to violate the rights of students accused of sexual assault, and she replaced them with her own interim guidelines. But now, critics say those are hurting alleged victims and discouraging them from reporting.
JENNIFER REISCH: The message that is sent is that the administration believes that women who report sexual harassment and violence are liars.
SMITH: Jennifer Reisch with Equal Rights Advocates spoke to reporters yesterday after a hearing on the lawsuit in federal court in San Francisco. She says victims are being hurt by DeVos's roles. Those guidelines allow schools to demand more evidence to prove an assault, to permit appeals only from the accused and to let investigations continue for an indefinite amount of time. None of that was allowed in the Obama era.
The old rules also used to require schools to protect alleged victims during investigations. Now, that's up to schools' discretion. And the old norm of making the accused student stay away from the accuser is now considered unfair. Schools are supposed to be even-handed, so some are issuing mutual stay-away orders that Reisch says unfairly punish alleged victims by restricting their rights...
REISCH: To use the gym, to go to certain classes, to live in certain places. It is sending a message that you come forward at your peril.
SMITH: Government officials declined to comment on pending litigation, but in court, they've denied the rules are discriminatory. And they argue the case should be thrown out on procedural grounds. Justin Dillon, an attorney who represents accused students, agrees it should not go to trial.
JUSTIN DILLON: It is completely frivolous.
SMITH: Dillon says most campuses are delaying policy changes till permanent rules are finalized. But he says schools who are making changes are making things more fair. For example, fewer students are being ambushed without knowing the charges against them, he says. And protective measures are less draconian. And when they're not, Dillon says, it's easier to fix, as he saw recently when a school kicked one of his clients off campus during an investigation.
DILLON: You know, I went to them and cited the guidance and said, you can't do this. You're interfering with his education. And you can't just not let this kid go to school for the semester while you investigate this. And in that case, I was able to persuade them to let him back on campus.
SMITH: For schools, DeVos's guidance has brought some confusion. As they wait for clarity, they continue to face lawsuits from both alleged victims and the accused.
MARTHA ALEXANDER: I mean, in a lot of ways, it does feel like you're a bit caught in the middle.
SMITH: Martha Alexander oversees sexual misconduct cases at the University of Kentucky. That school recently started limiting appeals rights to the accused and requiring panels to be unanimous to find a student at fault.
ALEXANDER: I think that this policy and these changes really is a step towards getting to a more fair system. Some campuses welcome what they consider less onerous oversight from the government. Peter McDonough with the American Council on Education says it's a relief to some that student complaints to the Department of Education are now treated as isolated incidents. And they no longer automatically trigger a broader government investigation of a school that could take years.
PETER MCDONOUGH: The campuses were concerned that an investigation would stay open until something was found. Some would have viewed that as a gotcha approach.
SMITH: But Catherine Lhamon, who oversaw government investigations of schools during the Obama administration, says the Trump administration should be more aggressive in trying to uncover whether schools are handling cases fairly.
CATHERINE LHAMON: If the government only investigates what someone thinks to bring to the government, the government's not doing its job. And I worry every day that there is effectively a pass on complying with the law, and that will ruin young lives.
SMITH: But if the Trump administration's approach prompts some schools to ease up on how they handle sexual assault cases, defense attorney Andrew Miltenberg says other schools are doubling down.
ANDREW MILTENBERG: There has been a very palpable sense of hell no, women have rights. And I'm not turning around and changing how we treat rape victims just because we have Donald Trump as a president.
SMITH: Miltenberg says policy corrections are needed, but they must be consistent and measured. Campuses that flout due process protections are just as troubling, he says, as schools now meting out probations for offenses that used to get expulsions. Tovia Smith, NPR News.
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