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Education Secretary Betsy DeVos released a proposed rule Friday that would revamp expectations for colleges’ handling of campus-based sexual misconduct.
The regulation -- the first the federal government has issued on the matter -- was crafted to clarify requirements for colleges and to add due process protections for accused students. But women’s groups and advocates for survivors of sexual assault warn that it will undermine the rights of victims. And they say it will let colleges off the hook for not taking the issue of sexual misconduct seriously.
One of the rule's biggest changes from previous federal policy is that it would make institutions responsible only for investigating misconduct that occurred within a college's own programs. Advocates for victims had warned this would leave institutions off the hook for incidents that occurred off-campus but documents released by the department Friday emphasize that geography alone does not dictate whether misconduct falls under the purview of Title IX.
The proposed regulation also would allow colleges to set their own evidentiary standard for making findings of misconduct. And it would require that colleges allow for cross-examination of students in those campus proceedings -- a major point of contention -- although no interaction by the parties themselves would be allowed.
“Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment," DeVos said in a statement Friday. "That starts with having clear policies and fair processes that every student can rely on."
Although groups that represent accused students have welcomed many of the changes advanced by the Trump administration, the biggest beneficiaries of the rule may be colleges themselves. Some institutions, under pressure from campus activists, have said they will maintain standards introduced under the Obama administration. But the rule could significantly reduce the liability of colleges.
Many campus officials have complained about a lack of clarity surrounding their responsibilities after President Obama issued federal guidance on campus assault in 2011. Those standards pushed institutions to change their practices but lacked the force of formal regulation. Critics also complained the guidance failed to account for public input.
DeVos unveiled the new regulation Friday well over a year after she rescinded the guidance documents from the Obama administration. After that decision last fall, the national mood on issues of sexual harassment and assault has shifted dramatically because of the Me Too movement.
After widely publicized allegations of sexual assault against Hollywood producer Harvey Weinstein arose, numerous women -- and some men -- have spoken up about harassment and abuse, including in the workplace. And many powerful men in media, entertainment and the government have been implicated, with some losing their jobs or being prosecuted for assault. Among them was Brett Kavanaugh, the new Supreme Court justice. After his nomination to the court in July, Kavanaugh was accused of sexual misconduct as a teenager by multiple women.
For many advocates for survivors on campus, it seems like a bitter irony that as American society’s awareness of the prevalence of sexual misconduct grows, DeVos is curbing protections they’d fought for and won years before.
DeVos, before rescinding the 2011 guidance last year, argued in a speech at George Mason University's law school that federal requirements had led colleges to trample on the rights of accused students.
“Due process is the foundation of any system of justice that seeks a fair outcome. Due process either protects everyone, or it protects no one,” she said. “The notion that a school must diminish due process rights to better serve the 'victim' only creates more victims.”
Interim guidance released by the department shortly thereafter gave colleges the ability to set their own standard of evidence for findings of misconduct. The Obama administration had advised colleges that they should use a preponderance of evidence standard, meaning that institutions should determine if it was more likely than not that harassment or abuse occurred. Proponents of more due process protections for accused students had argued for a higher evidentiary bar, known as clear and convincing evidence. And the guidance allowed colleges to use informal resolution practices such as mediation if agreed to by both parties. The regulation proposed by the department codifies those and other changes.
In September, a draft version of the proposal was leaked online after The New York Times published a story reporting on key details in the document. The rule released Friday is largely in line with what was contained in the draft proposal. One significant change, though, would make mandatory the ability of accused students to cross-examine their accusers, which The Wall Street Journal first reported last month. An earlier draft of the rules would have allowed colleges to include cross-examination rights in campus proceedings but would not have made it mandatory. The Obama administration had discouraged that practice.
Advocacy groups had argued that the possibility of questioning by their assailants would traumatize victims of assault and discourage them from coming forward. But some courts have ruled that colleges should incorporate a form of cross-examination opportunity when determining misconduct. The proposed rule released Friday would only allow for advisers, and not students themselves, to ask questions of the other party.
Colleges would be required to hold live hearings to determine misconduct under the regulation, which would not allow the "single investigator" model that has been employed by many institutions.
The rule also narrows the definition of sexual harassment to reflect Supreme Court precedent, which requires complaints of pervasive and egregious behavior. The definition is one of several changes to federal guidelines that limits the responsibility of colleges. Another would require that colleges only investigate misconduct reported to the proper official on campus. Since the Obama guidance was issued, professors or other college employees who were made aware of abuse or harassment were expected to report it.
Perhaps most significantly, the provision dealing with misconduct within a college's program or activities could significantly limit the scope of institutions' responsibilities and will likely be subject to intense scrutiny as the rule goes through a public comment process.
The rule also includes specific supportive measures that colleges are expected to make available for students, with or without a formal complaint of misconduct. Those include counseling, no-contact orders, changes to class schedules and dorm reassignments.
When it is published in the Federal Register, the rule will enter a 60-day public notice and comment period.Editorial Tags: Breaking NewsFederal policySexual assaultImage Caption: Education Secretary Betsy DeVosIs this diversity newsletter?: Newsletter Order: 0Disable left side advertisement?: Is this Career Advice newsletter?: Magazine treatment: Trending:
Federal complaint against Dartmouth says the college repeatedly ignored reports of three professors' 'Animal House' behavior
Three professors of psychological and brain sciences left Dartmouth College this year under a cloud of alleged sexual misconduct. But the exact allegations against them have been unclear. A new federal lawsuit against Dartmouth brought by seven former students may be filling in the blanks, with serious claims of misconduct on the part of the professors, up to and including assault, and negligence on the college’s part.
Dartmouth “knowingly permitted three of its prominent (and well-funded) professors to turn a human behavior research department into a 21st century Animal House,” reads the suit, filed in the U.S. District Court of New Hampshire. For more than a decade, it continues, female students in the department were “treated as sex objects by tenured professors Todd Heatherton, William Kelley, and Paul Whalen. These professors leered at, groped, sexted, intoxicated, and even raped female students.”
Dartmouth denies mishandling student complaints. All three professors were on a yearlong administrative leave prior to departing Dartmouth over the summer, following an investigation and recommendations by both the administration and a faculty committee that they lose their tenured positions. Kelley, the last to leave, resigned in July. Whalen resigned in June and Heatherton retired that same month.
President Philip J. Hanlon said at the time that Dartmouth did not enter into separation or nondisclosure agreements with any of the professors, and that they’d continue to be prohibited from entering campus property or attending any Dartmouth-sponsored events, on campus or off. The former faculty members are not named in the suit, and Kelley and Whalen could not be reached for comment. Heatherton, through his lawyer, told The New York Times Thursday that he “categorically denies playing any role in creating a toxic environment at Dartmouth.” He has previously apologized for acting “unprofessionally in public at conferences while intoxicated.”
But the lawsuit, per the frat house reference, describes a pattern of misconduct on and around campus, and of “conditioning faculty mentorship and support on students’ participation in the alcohol-saturated ‘party culture’ they perpetuated.”
The professors' “predatory club" was arguably “founded” by Heatherton, a prolific researcher who in 2005 was a co-principal investigator on Dartmouth’s biggest-ever peer-reviewed grant, according to the lawsuit. The faculty members conducted lab and one-on-one meetings at bars. Drinking alcohol, often to excess, was expected at department gatherings, and Kelley allegedly labeled one student who refused to drink a “bitch.” Comments about students' anatomy were commonplace; one student was told she didn't need a "boob job," for example, and another student was told a colleague had a "big penis." The professors allegedly asked students to late-night hot tub, or “tubby time,” parties at their homes, encouraged female students to stay overnight and invited undergraduates to use real cocaine during class lectures on addiction as part of a “demonstration.”
As for Dartmouth, the lawsuit says that it has known about the professors’ behavior, via student reports, since at least 2002. “But Dartmouth did nothing and ignored” them, it says, “thereby ratifying the violent and criminal acts of its professors.”
Allegedly emboldened by Dartmouth’s failure to respond to complaints against the department, Whalen announced to a group of students in 2010-11 that one female complainant’s action had “backfired” and that she’d lost “resources” and “steam in her career,” the suit says. The complainant “got what was coming to her, of course -- you don’t bite the hand that feeds you,” Whalen allegedly said.
Finally, in April 2017, according to the lawsuit, a group of female graduate students together contacted Dartmouth’s Title IX Office, which is responsible for complying with Title IX of the Education Amendments of 1972, prohibiting gender-based discrimination. But Dartmouth again “did nothing” to immediately alleviate the situation and even encouraged students to continue to work with the professors so as not to disrupt their studies. As a result, it says, Whalen sexually assaulted one of the complainants 20 days later, after he allegedly forced the graduate student into a night of drinking with him.
The student says she attempted to leave Whalen's home several times, but he did not let her. When he allegedly forced her into intercourse, she says she begged him to wear a condom and he refused. Kelley also allegedly pressured another plaintiff, also a graduate student, into sex in 2015. After she confronted him about it, he allegedly tried to coerce her into leaving Dartmouth early, saying she wasn’t getting “anything done here” and was “really bitter.”
The plaintiffs and the other women in the department continued to have to work with the professors for four more months, with the sexual harassment “unabated,” until they were placed on leave. Dartmouth did not publicly acknowledge the suspensions, causing some students to post fliers on campus asking about their “missing” professors, according to lawsuit.
Eventually, some 27 complainants became involved in a Title IX investigation, the lawsuit says. Soon after Dartmouth was forced by news media to publicly acknowledge the case, last fall, New Hampshire’s attorney general opened a criminal investigation into the allegations.
Dartmouth later hired an outside attorney to conduct a third-party investigation, but the college stopped the inquiry and allowed the professors to retire or resign, some 15 months after the group of graduate students’ initial complaints, the lawsuit says.
“The seven plaintiffs, each an exemplary female scientist at the start of her career, came to Dartmouth to contribute to a crucial and burgeoning field of academic study,” reads the lawsuit. “Plaintiffs were instead sexually harassed and sexually assaulted by the department’s tenured professors and expected to tolerate increasing levels of sexual predation.”
The women are seeking $70 million in damages and to force Dartmouth to adopt “meaningful reforms that will permit women to engage in rigorous scientific study without fear of being sexually harassed and sexually assaulted.”
“Sexual misconduct and harassment have no place at Dartmouth,” the college said in a statement. As a result of the misconduct it found earlier this year, it said, “we took unprecedented steps toward revoking their tenure and terminating their employment. They are no longer at Dartmouth and remain banned from our campus and from attending all Dartmouth-sponsored events, no matter where the events are held.”
While applauding the “courage” it took to the students bring the misconduct allegations to Dartmouth’s attention last year, Dartmouth said it “respectfully, but strongly” disagrees with the characterizations of its actions in the complaint.
Dartmouth remains “open to a fair resolution of the students’ claims through an alternative to the court process,” it added.
Michael Barasch, managing partner of Barasch McGarry, who has represented thousands of clergy sex-abuse victims, said Dartmouth’s lawsuit “should be a loud and clear warning to institutions of higher education that ignoring sexual misconduct could have serious financial consequences. Even for a college like Dartmouth, with a $5 billion endowment, $70 million amounts to an enormous liability.” Barasch said the case also underscores that institutions must create processes by which survivors can report abuse "without the threat of retaliation, for both moral and financial reasons.”FacultyEditorial Tags: FacultyGraduate studentsMisconductIs this diversity newsletter?: Newsletter Order: 0Disable left side advertisement?: Is this Career Advice newsletter?: Magazine treatment: Trending: College: Dartmouth College
The Kean Federation of Teachers is raising alarms about a plan to change the fundamental terms of employment for faculty members teaching at Kean University’s campus in China. Currently, faculty who teach at the Wenzhou-Kean University campus are employees of Kean, a public university in New Jersey. Starting July 1 they will be employees of Wenzhou-Kean.
Kean says that it will continue to control academics at the institution and that as Wenzhou-Kean has grown, it has become more efficient for its Chinese branch to pay faculty members directly. But James A. Castiglione, the president of the Kean Federation of Teachers and an associate professor of physics at the New Jersey campus, said the change raises a whole host of questions, including questions about how academic freedom will be protected and whether there will be changes to the pay, benefits and tenure status of faculty teaching at the Wenzhou-Kean campus. Kean says it intends to provide comparable pay and benefits to faculty at WKU after the change, but Castiglione said that since faculty will no longer be eligible for union membership and covered by the union's contract, there is no guarantee of that.
“The president says the only change is they’re being paid by China, but it’s a little bit like saying we’re moving your address to the moon -- that’s all, that’s the only change, you’re moving to the moon,” Castiglione said. “There’s a whole cascade of problems that flow from that.”
Castiglione said the change will effectively make faculty members at Wenzhou-Kean employees of the Chinese government. A press release from the American Federation of Teachers New Jersey bears the striking headline “Kean U. Hands Over Overseas Faculty to Communist China.”
“To say that you’re an employee of Wenzhou-Kean versus an employee of the government -- there’s no distinction,” Castiglione said. “The government bought the land; it paid for the construction of the building; it provides the money that runs the university … If you go to the Wenzhou-Kean website and you print out an organizational chart of Wenzhou-Kean, what you’ll see is that the very top of the organizational chart is the CCP secretary -- that is, the Chinese Communist Party secretary.”
Kean’s vice president of university relations, Karen Smith, said that Wenzhou-Kean is a joint initiative between Kean and its Chinese partner, Wenzhou University. She said Kean will retain academic control over the institution after the change in the employment structure. “That’s part of the agreement for the establishment of Wenzhou-Kean University in the first place and that is what will continue,” Smith said.
A letter from Kean president Dawood Farahi says that Kean will continue to set academic policies and that "senior academic managers" -- which Smith defined as administrators at the associate dean level or higher -- will continue to be employed by Kean even though the faculty they manage will soon be Wenzhou-Kean employees. (Castiglione was skeptical: “Does anyone really believe the Kean academic managers will have any authority?” he asked).
“To be clear, academic management, standards, policies, assessment and accreditation will be managed by Kean USA, with all senior academic managers remaining Kean USA employees,” Farahi wrote. “Moreover, no Wenzhou-Kean faculty member can be appointed or reappointed without the recommendation of the Kean USA president/provost, which will only occur following the normal Kean USA evaluation process via the provost’s office.”
The letter does not specify the converse of that: whether approval from the Kean president or provost will be required for a faculty member to be terminated. Officials at Kean, which closed at 4 p.m. Thursday for snow, did not provide clarification on whether that would be the case.
"While we understand some people may purposely misconstrue information about this transition, the administration is focused on communicating the facts directly with faculty," the letter from Farahi states. "Our objective is to focus on what benefits our students both at WKU and Kean USA and to provide faculty at WKU with comparable salary, benefits and other privileges as those who work here at Kean USA. In a recent meeting Kean University leadership clearly stated that faculty will receive comparable tenure status, benefits and compensation in Chinese currency."
The letter continues: "It is worth noting that our sister institutions in China, [New York University] Shanghai and Duke Kunshan, are already using the local employment model, and have been successfully for a few years.” A spokesman for Duke University confirmed that faculty hired at the Duke Kunshan campus are Duke Kunshan, not Duke, employees. A spokesman for NYU did not clarify which entity, NYU or NYU Shanghai, employs the university's faculty in China.
Kevin Kinser, a professor and chair of education policy studies at Pennsylvania State University, said via email that faculty members at Kean “are right to resist this move, and I would expect this to get the attention of Kean’s accreditor.”
“Given China’s increasing restrictions on free speech and dissent, I would be interested in how Kean is assured that the new model won’t affect academic freedom,” Kinser, an expert on international higher education, said via email. He said he was not comforted by the fact that other institutions with branch campuses in China might have similar employment models.
“In fact, I wonder how they are addressing the exact same issues,” Kinser said. “China is changing in terms of how open it is to Western ideas and challenges to [the] government agenda. This is new. Branch campuses can’t assume that the original agreements still hold. In this case, Kean needs to understand whether it still has levers of control. And I think it owes it to its constituents and stakeholders to explain how it still maintains academic control and what it will do if the Chinese government tries to restrict faculty and student autonomy.”
Kean’s hiring policies in China have come under scrutiny before. In 2015 the faculty union raised concerns about job postings for two student affairs positions that stated preferences for Chinese Communist Party members. A spokeswoman for Kean said at the time that per its agreement for the campus, "All academic personnel are hired and employed by Kean University in accordance with the same laws, policies and practices at all Kean campuses. Operations personnel are hired by our Chinese partners in accordance with their laws."GlobalInternational Branch CampusesEditorial Tags: Academic freedomInternational higher educationU.S. Campuses AbroadIs this diversity newsletter?: Newsletter Order: 0Disable left side advertisement?: Is this Career Advice newsletter?: Magazine treatment: Trending: College: Kean University