Betsy DeVos’ plan on governing how schools and colleges handle sexual harassment and assault accusations
Education Secretary Betsy DeVos’ long-planned overhaul of regulations governing how schools and colleges handle allegations of sexual harassment and assault has been released in final form. As expected, they came under almost immediate court challenge from advocates for sexual abuse victims who claim they will lead to a return to the bad old days when campus rape and sexual misconduct were swept under the rug.
It is fair to question why the Trump administration chose to release the final rules during a global pandemic when schools across the country are scrambling to deal with chaos and uncertainty. It is also understandable to wish that the department had taken more to heart some suggested changes, including how sexual harassment is defined, how victims are cross-examined and the scope of a school’s responsibility. But the old guidance was in need of improvement, and the new Title IX rules do not provide license for schools to ignore sexual assault and harassment. The revisions, as we observed when the proposal was put out for public comment in 2018, include some changes that would bring needed balance to disciplinary proceedings.
Four advocacy groups for people who have been sexually assaulted filed a federal lawsuit last week seeking to block the provisions from going into effect Aug. 14. The regulations, released May 6, replace the now-rescinded guidance of the Obama administration on how to enforce the 48-year-old federal law banning sex-based discrimination in federally funded education programs. The Education Department was right to tell schools, in a 2011 “Dear Colleague” letter, that they needed to deal with long-neglected problems of sexual abuse or risk the loss of federal funding. But that led to a different set of problems. Law professors at leading universities said overcorrection in countering the culture of denial resulted in an assumption of guilt that denied the accused any semblance of due process, including access to evidence from investigative reports and the right to a fair hearing.
The basic issue surrounding the new rules is whether bolstering the rights of those accused — starting with a presumption of innocence and requiring a separation between investigation and adjudication of a complaint — will have a chilling effect on the willingness of students to come forward with allegations of sexual misconduct. Some changes — such as allowing schools to apply a higher evidentiary standard for sexual abuse cases than is used for disciplinary proceedings — seem ill-advised. It is concerning that schools that are now trying to deal with the dilemmas caused by the novel coronavirus will also, barring court action, have to put in place new (and likely costlier) procedures to deal with sexual abuse and harassment cases. Equally concerning, though, is that overheated rhetoric about the bad old days could become a self-fulfilling prophecy.
— The Washington Post
Congress should require states to expand early voting and mail-in voting procedures
Even as some states and localities are “reopening” businesses and public spaces, it is likely that the COVID-19 pandemic will still be with us in November when Americans will elect a president, the entire membership of the U.S. House and more than a third of the U.S. Senate.
It is past time for Congress to require states to expand opportunities for voting by mail and early voting — and to help pay for those changes — so that Americans on Nov. 3 aren’t faced with a choice between protecting their health and exercising the most important right of citizens in a democracy.
That was the grim dilemma encountered by voters in Wisconsin’s April 7 election, when — despite social distancing and other precautions — dozens of voters and poll workers may have been infected at polling places. It’s vital that Congress act now to prevent voters across the country from encountering a similar situation in November, which could lower turnout as well as spread disease.
Congress included $400 million for state election systems in a coronavirus stimulus package approved in March. But that sum falls far short of what is required to make it possible for states — especially those that lack experience with extensive voting by mail — to prepare for an election in which most votes might have to be cast by that method.
The House passed a new coronavirus relief bill May 15 that would give state election systems $3.6 billion to respond to the pandemic — a sum much closer to estimates by outside election experts of what will be required to conduct elections during this crisis. But Congress must act quickly; according to an analysis by the Brennan Center for Justice, states will have to start preparing this month if they’re going to be ready for voting by mail in the fall.
It’s also important that states take precautions to protect the health of voters who will cast their ballots in person, an option that must remain for disabled voters and those with unreliable mail delivery. Generous arrangements for early voting will reduce congestion at polling places, and election officials also must be prepared to sanitize those locations to protect the health of voters and poll workers.
Shoring up election systems to respond to the pandemic should be a bipartisan cause. But while some Republican governors recognize the importance of expanding voting by mail, Republicans in Washington haven’t risen to the occasion. Some GOP senators have expressed concern about a “federal takeover of the election process.” President Trump has called voting by mail a “terrible thing,” complained that it hurts Republicans, and suggested without offering proof that expanding the practice could lead to massive fraud. (Never mind that Trump voted by absentee ballot in Florida’s primary.)
Alarmism about a “federal takeover” of elections ignores the Constitution‘s instruction that, while states are responsible for the “time, places and manner” of congressional elections, Congress may “at any time make or alter such regulations.” Congress also has legislated regulations for presidential elections. It would be shameful if Republicans refused to exercise that authority to make it easier for Americans to vote during a public-health crisis. But then, the GOP in recent years has been the party trying to make it harder to cast a ballot.
Sen. Amy Klobuchar, D-Minn., who along with Sen. Ron Wyden, D-Ore., introduced a separate bill to help states expand voting by mail, suggested that there could be negotiations with Republicans if they showed interest, though she said she would oppose any provisions that would suppress the right to vote.
Some compromises might be acceptable. While the problem of fraud in absentee voting is vastly exaggerated, occasional abuses have occurred. Some Republicans might be willing to support expanded voting by mail in exchange for a requirement that states minimize the possibility of fraud and error, including by placing limits on so-called “ballot harvesting,” the collection and delivery of multiple ballots by activists or party members. That’s a reasonable compromise.
But if Republicans in the Senate erect too many obstacles to an expansion of voting by mail and other measures to safeguard voting in this extraordinarily emergency, they will face the judgment of history — and of the voters they disenfranchised or endangered. They will play politics with this issue at their peril.
Members of Congress of both parties have recognized that the COVID-19 contagion requires new thinking. If the damage inflicted on the economy by the virus justified a massive federal response, so does the threat the pandemic poses to democracy. Time is running out.
— The Los Angles Times