On June 3, 37 U.S. Senators sent Education Secretary Betsy DeVos a letter demanding that she rescind her new rules eviscerating Title IX protections from sexual harassment and assault at schools and universities.
A day later, attorneys general from 17 states and the District of Columbia filed a federal lawsuit challenging the new rules. The lawsuit asserts that the new rules require onerous disciplinary hearings that discourage reporting of assault and harassment and make allegations more difficult to prove. The ACLU filed a similar lawsuit on May 14 in Maryland.
“We will not stand by as Betsy DeVos abandons students who seek a safe learning environment free from violence and discrimination,” said Massachusetts Attorney General Maura Healey. “Survivors of sexual assault and harassment deserve to have their voices heard and to be protected at their educational institutions.”
Filed in the District of Columbia, the lawsuit by the attorneys general states that the new rule “strips away longstanding protections against sexual harassment in violation of Title IX’s mandate to prevent and remedy sex discrimination, and in ways that conflict with other federal and state statutes and Supreme Court precedent.”
The complaint alleges that the unlawful rule “will reverse decades of effort to end the corrosive effects of sexual harassment on equal access to education.”
The attorneys general cite data showing that sexual harassment, discrimination and violence are common on campuses and notoriously underreported. Studies show that only 12 percent of college sexual assault survivors and 2 percent of 14 to 18-year-old female sexual assault survivors report sexual assault to their schools or the police. Approximately 34 percent of survivors drop out of college, often because they no longer feel safe on campus.
“It’s hard enough for sexual assault survivors to come forward—why is the Trump administration making it even more difficult?” said Washington State Attorney General Bob Ferguson. “Title IX is intended to ensure everyone has access to education free from harassment, violence and discrimination. This rule undermines that purpose.”
The 37 U.S. Senators agree. In their letter, they detail the following problems with the new rule:
Narrows the Definition of Sexual Harassment
Under the new rule, conduct must be “severe, pervasive and objectively offensive”—a higher standard than in similar proceedings under other civil rights laws, including, for example, those covering workplace sexual harassment. Previously, survivors only needed to prove one of those characteristics.
Exempts Most Off-Campus and Online Harassment and Assault
The new rule prevents schools from investigating sexual assault and harassment that occur during a study abroad program, in off-campus housing, at an unrecognized fraternity or online if the school does not control the platform on which the abuse occurred. This could mean survivors have to continue to attend a class with or taught by their rapist or abuser.
Requires Dismissal of Cases If Survivor Leaves School
This applies even if they transferred or dropped out due to the harassment, or if they graduated.
Allows Schools to Ignore Incidents They Reasonably Should Have Known About
The rule limits schools’ responsibility to situations in which they have ‘actual knowledge’ of harassment or assault so schools will be will be all but immune from liability under Title IX if students report an incident to the wrong person.
Under this rule, as stated in the senators’ letter:
“Michigan State University would not have faced any responsibility for those incidents involving Larry Nassar because students reported the abuse to coaches or athletic trainers rather than the Title IX Coordinator or to particular high-ranking officials.”
Makes It Harder to Prove Sexual Assault and Harassment
The rules allow schools to use the preponderance of the evidence standard in student sexual harassment investigations only if they utilize it for faculty sexual harassment investigations, even though many employees are contractually required to use the clear and convincing standard. As a result, the rule will force schools into using a standard that favors the respondents and tilts against complainants, and is inherently not reflective of the equitable nature of Title IX.
Requires Live Hearings With Direct Cross-Examination of Survivors and Other Witnesses
New provisions in the rule around hearsay would require schools to exclude all oral and written statements from the complainant, respondent, or any individual, including police officers, nurses or other students, if that individual is not able or refuses to be cross-examined. Students experiencing domestic violence would be required to participate in a live hearing with their abusers.
Implies Women and Girls Are Untrustworthy
The letter states:
“By singling out sexual assault, harassment, domestic violence, stalking and dating violence, all of which disproportionately impact women and girls, as the only types of misconduct where additional investigation and hearing procedures apply, the Department is suggesting people reporting these incidents are inherently less trustworthy. That is inherently discriminatory against women and girls and is unacceptable.”
Blocks State Efforts to Address Sexual Harassment and Assault
The rule includes new provisions regarding retaliation, preempting state laws, and new bases for dismissals of complaints; by preempting state efforts that conflict with the rule, the Department is preventing states from taking action that would increase protections for survivors
Has a Disproportionate Negative Impact on Marginalized Students
The letter states:
“The rule also will lead to challenges for students of color, students with disabilities, LGBTQIA+ students, low-income students, and others who face barriers to education. The rule fails to recognize the intersectional nature of many forms of harassment and discrimination, and the rule’s proscriptive policies will be particularly harmful to those without access to resources and legal counsel.”
Both the letter and the lawsuit contain serious objections to Secretary DeVos’s deadline of August 14 for the rules to go into effect. The authors argue this deadline is unrealistic because of the coronavirus; the deadline forces schools to revise codes of conduct, rules, regulations and collective bargaining agreements in less than three months and in the midst of the COVID-19 pandemic. Failing to comply could put their federal funding at risk.
In a statement accompanying the lawsuit, California Attorney General Xavier Becerra said,
“From mocking the #MeToo movement to pushing this backward rule that makes our schools less safe, President Trump wears his disdain for gender equality and safety on his sleeve.”