WASHINGTON – The attorneys general of 17 states and the District of Columbia have filed a lawsuit against U.S. Secretary of Education Betsy DeVos and the U.S Department of Education, in a challenge to new regulations that dictate how primary and secondary schools respond to student sexual assault and harassment complaints under Title IX.
Title IX outlaws sex-based discrimination at all levels of U.S. education.
Under the new Title IX rules, schools are mandated to respond to unwelcome treatment on the basis of sex that is “so severe, pervasive and objectively offensive” that it infringes on an individual’s education.
Previously, the U.S. Department of Education used a broader definition of conduct that is “severe, pervasive or objectively offensive.”
In the fall of 2017, DeVos rescinded prior such Title IX regulations formed under the administration of President Barack Obama, which she said didn’t go far enough to protect the due process rights of accusers.
DeVos announced the new guidelines on May 6, after a lengthy period of years spent receiving input and public comment.
Plaintiffs in the lawsuit are the states of California, Colorado, Delaware, District of Columbia, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin, each represented by their respective attorney general.
The states argue that changing and narrowing the conduct definition of sexual assault and harassment, through setting a higher threshold than for other civil rights laws, will have a detrimental effect on the ability of students to report such behavior. Supporting arguments note that the federal education department’s very own study predicts fewer investigations under the new guidelines.
“The Department’s definition requires students to endure repeated and escalating levels of harassment to the point of risking school avoidance; detrimental mental health effects, such as increased risk of self-harm and depression; declines in attendance; withdrawal; and even dropout before the Rule permits schools to stop the discrimination under Title IX,” according to the lawsuit.
The suit adds that, in the midst of an ongoing public health and economic crisis, it will be a challenge for schools to change their sexual assault and harassment reporting procedures and staff training to adhere to the new.
“Under normal circumstances, requiring schools to overhaul their policies and procedures, re-negotiate collective bargaining agreements, and implement the Rule’s hiring, training, and other requirements in less than three months would impose an extraordinarily difficult burden,” the states say.
“Given the ongoing uncertainty caused by the COVID-19 pandemic and the strain it has placed on education institutions, defendants’ decision to require compliance with the Rule by Aug. 14 is inexplicable.”
Pennsylvania’s Attorney General Josh Shapiro says the new rules limit the originally-intended enforcement effect of Title IX.
“Title IX’s mandate is simple: our schools must give women and men equal access to education, which means no one should experience sexual harassment. But instead of making it easier for students to report, and for schools to respond, to sexual harassment, Secretary DeVos has unlawfully narrowed Title IX’s reach,” Shapiro said.
“If any Pennsylvania student is sexually harassed, or if any Pennsylvania student is accused of sexual harassment, they deserve to have a fair process. Secretary DeVos has exceeded her authority by issuing regulations that make this important right nearly impossible to achieve in practice, all while reducing protections for victims.”
Shapiro added that the new regulations “turn classrooms into courtrooms and will have a chilling effect on survivors throughout this country.”
“We cannot afford to take such a step backwards in the fight for justice,” Shapiro stated.
U.S. District Court for the District of Columbia case 1:20-cv-01468
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com