18 States And D.C. Sue DeVos To Block Changes To Title IX Sexual Misconduct Rules

18 States and D.C. Sue DeVos to Block Changes to Title IX Sexual Misconduct Rules

A lawsuit has been filed by democratic attorneys general from 17 states and the District of Columbia against Education Secretary Betsy DeVos. The lawsuit aims to block the recently passed regulations that restrict sexual misconduct cases falling under Title IX, the federal law that prohibits sex-based discrimination. Additionally, the state of New York has submitted its own complaint.

The new policy, which is set to take effect on August 14, narrows down the cases in which K-12 schools and colleges are required to investigate allegations of sexual harassment on campus. It also strengthens due-process protections for accused students and clarifies that stalking and dating violence are covered by Title IX protections.

The lead plaintiffs, along with other attorneys general, have filed the lawsuit in federal court, naming the education secretary, the Department of Education, and the United States of America as defendants. They are requesting that the court halt the August 14 effective date and invalidate DeVos’s rule.

The attorneys argue that if the rule is implemented, students will have reduced protections against predatory behavior when they return to school, undoing years of effort to address sexual harassment and equal access to education. They also highlight the unreasonable timing of the ruling, as schools and colleges will have limited time and resources to adjust their sexual misconduct review systems amidst the COVID-19 pandemic.

The complaint by the attorneys general has been criticized by the U.S. Department of Education, describing it as a "political press release masquerading as a lawsuit." The department claims that the new Title IX rules provide reliable, transparent, and fair processes for handling complaints of sexual misconduct.

However, the attorneys general and other leaders are concerned that the new regulations, along with their rushed implementation, will discourage survivors from reporting sexual assault and create confusion for schools and colleges. The majority of sexual assaults and rapes already go unreported according to a 2016 analysis by the U.S. Department of Justice.

There are also concerns about the burden the changes will place on K-12 schools, which have historically struggled to handle allegations due to a lack of resources and institutional knowledge.

The lawsuit filed on Thursday joins a growing opposition to the new policy. The ACLU previously sued DeVos and the Department of Education, and Rep. Jackie Speier and the U.S. Commission on Civil Rights have also expressed their disapproval.

Although the policy was finalized recently, it is the result of DeVos’s efforts to overhaul Title IX protections since she took office in 2017. The regulations were introduced in 2018 and received numerous public comments from schools, survivors, and due process advocates.

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Title IX was established in 1972 to ensure that students have equal access to education regardless of their gender. It was a crucial but vaguely defined mandate, and it wasn’t until the 1990s that the Education Department began to clarify the implications of the law for on-campus sexual harassment. They provided guidance through a series of directives, known as the "Dear Colleague" letters, addressing the issue and stating that on-campus sexual harassment is a form of sex-based discrimination that can be prosecuted under Title IX.

Due to the absence of recent federal data on sexual assault among school-age children, we are unable to determine whether the number of incidents has increased or decreased during DeVos’s tenure. However, a recent tally conducted by NBC News revealed that since the beginning of 2018, at least 330 lawsuits have been filed nationwide, alleging failures by K-12 schools to protect students from sexual misconduct or mishandling relevant investigations.

Critics are concerned that the new policy may create confusion by creating a discrepancy between state and federal definitions of "sexual harassment." DeVos’s rule states that the updated federal definition will override any state-level definitions. Advocates argue that this will lead to allegations of harassment under Title IX being treated with more skepticism compared to allegations of discrimination based on race or disability. They also worry that institutions will be forced to maintain separate systems for managing sexual assault claims—one for cases covered by the new regulations and another for cases that do not meet that definition.

Levin, one of the advocates, highlights an administrative problem caused by the policy. He questions who will decide which cases fall under Title IX and what procedures will exist for cases that do not meet that threshold. Additionally, he raises concerns about the potential chilling effect the changes may have on students reporting incidents of harassment. By creating barriers, the administration makes it more challenging for students to report sexual harassment, which goes against the spirit of Title IX.

Levin also mentions that the part of the new rule allowing K-12 schools to hold hearings to resolve Title IX cases may discourage students from reporting. He sees it as another inhibiting factor.

The Department of Education has 60 days to respond to the complaint, and it remains uncertain whether the court will postpone the effective date of the rule or issue a preliminary injunction against certain provisions. In the meantime, Levin predicts that he will continue to receive inquiries from confused families.

"Title IX is complicated to understand," he explains. "Now, with these new regulations, it makes it even more challenging for us."

Experts caution that Betsy DeVos’s new Title IX rules may lead to an influx of expensive lawsuits as the federal government takes a step back from sexual assault cases.

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