Dive Brief:

  • Eighteen Democratic attorneys general have sued U.S. Secretary of Education Betsy DeVos over her new regulations governing how colleges should investigate and respond to sexual violence on campus. 

  • They argue the rules undermine the intent of Title IX, the federal law barring campus sex discrimination, by reducing the number of incidents colleges would need to review, according to the lawsuit.

  • The officials say the regulations may conflict with state and federal statutes, and that they create a set of “one-size-fits-all formal procedures” that do not allow for institutions to fairly judge a complaint.

Dive Insight:

The rules, which DeVos finalized last month and that carry the force of law, replace Title IX guidance issued under the Obama administration that is largely credited with catapulting the issue of campus sexual misconduct onto a national platform. 

Though the Obama-era measures were lauded for providing sexual assault survivors with new safeguards, critics claimed they trampled the rights of accused students. 

Advocacy groups, led by the American Civil Liberties Union, responded with legal action soon after the final rules were announced.

The regulations create a quasi-judicial setting for determining the facts of a sexual misconduct report. The students involved have an adviser of their choice — which may be a lawyer — present for a live hearing. That surrogate must be allowed to cross-examine the other party. Observers fear that accused students will call in high-priced attorneys, “legal pit bulls,” as American Council on Education President Ted Mitchell described them, to escape consequences. 

Though the rules reinforce colleges’ legal obligations to investigate domestic and dating violence as part of Title IX, they also narrow the definition of sexual harassment. Colleges also no longer need to investigate most episodes of sexual violence that occur off campus, including on study abroad trips and at neighboring apartments not under an institution’s purview. 

The top lawyers from 17 states and Washington, D.C., are suing to block DeVos’ regulations from taking effect on Aug. 14, a date many administrators balked at given the economic turbulence created by the coronavirus.

The department pushed back. “[C]ivil rights are not on hold during this pandemic,” department spokesperson Angela Morabito wrote in an email. The new rules require colleges to follow “a reliable, transparent, and fair process in handling complaints of sexual misconduct,” she continued, adding that the states’ complaint is a “political press release masquerading as a lawsuit.”

“Due process rights are survivors’ rights — everyone deserves to be treated fairly, and that’s what our rule requires,” she wrote. 

The attorneys general take exception to several aspects of the regulations, including the limits on looking into off-campus incidents, and what their complaint calls a “prescriptive” hearing process. They note that employees accused of sexual misconduct would also be subject to a hearing, which may conflict with some state employment laws.

Because the rule reduces the definition of sexual harassment, colleges would no longer need to investigate “egregious” behavior that doesn’t meet the new, lower standard, officials wrote, calling the regulations “unlawful.” The new definition, which matches the standard that the U.S. Supreme Court has used in Title IX cases, covers conduct that is “severe, pervasive and objectively offensive” enough to interfere with students’ education.

“According to the federal government’s own data, sexual harassment against students remains pervasive and mostly unreported,” the lawsuit states. “With the Department’s final Rule, sexual harassment will not become less common — but it will, as the Department acknowledges in the Rule, become even less regularly reported and remedied.”

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