The ACLU on Thursday filed suit to block provisions of the Department of Education's controversial new rules set to take effect in August governing how all U.S. schools, including higher education institutions, must handle sexual harassment and assault allegations involving students.
"In a reprehensible move that puts students at risk, the new rule gives schools more leeway to ignore their Title IX responsibilities."
—Joel Levin, Stop Sexual Assault in Schools
Education Secretary Betsy DeVos unveiled the rules last week to replace an Obama-era guidance she suspended in September 2017. The ACLU's complaint, filed with the U.S. District Court in Maryland, names the Education Department, DeVos, and Kenneth Marcus, assistant secretary for civil rights at the federal agency, as defendants.
Critics have warned that the new policy for Title IX—the U.S. law that bars sex-based discrimination in any education program or activity receiving federal funding—will silence student survivors and limit their educational opportunities, and have vowed to fight against it.
In this federal lawsuit, the ACLU and the firm Stroock & Stroock & Lavan LLP are representing four organizations that help student survivors of sexual misconduct continue their education: Know Your IX, the Council of Parent Attorneys and Advocates, Girls for Gender Equity, and Stop Sexual Assault in Schools.
"Betsy DeVos has created a double standard that is devastating for survivors of sexual harassment and assault, who are overwhelmingly women and girls," Ria Tabacco Mar, director of the ACLU's Women's Rights Project, said in a statement. "We are suing to make sure this double standard never takes effect."
"Betsy DeVos and the Trump administration have shown, once again, that they have no interest in supporting student survivors and their rights," declared Sage Carson, manager of Know Your IX, a project of Advocates for Youth. The new Title IX policy, Carson warned, "makes it harder for survivors to report sexual violence and easier for schools to sweep sexual violence under the rug."
Stop Sexual Assault in Schools co-founder Joel Levin echoed Carson's criticism. "In a reprehensible move that puts students at risk, the new rule gives schools more leeway to ignore their Title IX responsibilities," he said.
The complaint raises alarm about five "unlawful" provisions from the department's policy, which is detailed in over 2,000 pages:
- Redefining sexual harassment to exclude many instances of misconduct that currently fall within the agency's definition, and that continue to fall under the agency's definition of harassment based on race, national origin, and disability;
- Directing schools to ignore many Title IX reports of sexual assault that occur off campus/school grounds, including in off-campus housing or during study abroad, regardless of the effect they have on-campus and on survivors' educations;
- Relieving colleges and universities of the obligation to address sexual harassment unless reports of sexual harassment are made to a limited number of school officials, while requiring those same officials to respond to all harassment on the basis of race, national origin, or disability of which they knew or should have known;
- Permitting, and in some cases requiring, schools to apply a higher standard of proof in sexual harassment hearings than has been required in hearings involving other forms of harassment committed by students; and
- Holding schools accountable for their failed responses to sexual harassment only when they are "deliberately indifferent," while requiring schools to "take prompt and effective steps reasonably calculated to end harassment, eliminate the hostile environment, prevent its recurrence, and remedy its effects" in cases of harassment based on race, national origin, or disability.
"The regulations absolutely fail to consider the experiences, challenges, and needs of students with disabilities, who already face additional barriers to education," said Selene Almazan, legal director at Council of Parent Attorneys and Advocates.
While the Education Department has framed its policy as "historic action to strengthen Title IX protections for all students" based on "years of wide-ranging research, careful deliberation, and critical input" from experts and survivors, Almazan accused the administration of choosing to "ignore research and best practices that fully support the rights of students with disabilities."
Ashley Sawyer, policy director at Girls for Gender Equity, warned that "the new Title IX regulations are a blatant threat to the years of work to create safe, supportive academic environments for students across the gender spectrum."
"We want to do everything we can to ensure that the true spirit and original intent of Title IX remains," Sawyer said, "to ensure that everyone has meaningful access to education, without being hindered by sexual violence."
