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Lawsuits aim to block DeVos’ new sexual misconduct rules

WASHINGTON >> Students, women’s rights and education groups are suing to block Education Secretary Betsy DeVos’ campus sexual assault rules from taking effect next month, with plaintiffs as young as 10 joining arguments that the rules will harm students and burden institutions.

Last week, seven students joined a lawsuit the National Women’s Law Center filed against the Education Department, outlining how the new rules, which bolster the rights of the accused and relieve schools of some liability, stand to derail their cases or deter them from pursuing them altogether.

Plaintiffs include a fifth grader in Michigan who fears that her elementary school will not be required to formally investigate and punish her classmate for assaulting her four times over two months; a recent graduate of the University of California, Santa Barbara, who decided not to formally report her rape at an off-campus apartment because she believed that the final rule rendered her complaint futile; a former student with an open case at the University of California, Santa Cruz, who fears facing her former professor in a soon-to-be mandatory live hearing; and a recent graduate of Harvard University who said she feared the school would dismiss her complaint because she had graduated, even though she said the accused is still a student.

“The fear these students are living with show how real the consequences are of DeVos’ rule,” said Shiwali Patel, the director of Justice for Student Survivors who is senior counsel at the law center. “The rule isn’t about evening the playing field — it’s about directly harming survivors and making it harder for them to come forward.”

The law center’s suit, filed on behalf of four organizations that represent student survivors, is one of several by states and advocacy groups challenging the department’s rules, which were completed in May and are slated to take effect Aug. 14.

The suits have drawn the support of education groups that say the enforcement date is unreasonable as schools focus on reopening during the coronavirus pandemic.

Education Department officials say they are moving forward.

“Schools have been on notice since 2017 that change was coming, and civil rights and due process cannot wait,” the department said in a statement. “We know schools can rise to the challenge of protecting all of their students. We know that institutions are still receiving Title IX complaints while students learn remotely, and to pretend otherwise would mean doing students a disservice.”

The law center’s lawsuit says the rules violate administrative laws, and discriminate against women in violation of the Fifth Amendment. The American Civil Liberties Union sued the department on behalf of four organizations, accusing it of imposing a “double standard” on victims of sexual harassment that victims of other forms of discrimination do not face. Attorneys general in 18 states, including California, Michigan and Oregon, sued last month, calling the rules arbitrary and capricious.

The State of New York also filed a lawsuit seeking injunctive relief from the rules, saying that they conflict with state laws and would put one of the nation’s largest higher education systems — the State University of New York — at risk of losing billions for failure to comply.

“The president has repeatedly shown that he doesn’t think sexual harassment is a serious matter, but his callousness now threatens our youngest and most vulnerable and could increase the likelihood of sexual harassment and abuse of students in schools,” Letitia James, the attorney general of New York, said in a statement announcing the suit.

The attorneys general suits is being supported by two dozen higher education organizations that have urged DeVos to delay the enactment of the rules, which would require colleges to drastically overhaul the way they investigate sexual harassment in order to comply with Title IX, the 48-year-old federal law that prohibits sex discrimination in programs that receive federal funding. Although the new rules relieve schools of some legal liabilities they faced under previous administrations, they require new staff, training and procedures, such as live hearings and advisers that cross-examine parties.

In an amicus brief, organizations like the American Council on Education, which represents 1,700 college presidents, wrote that they were given 87 days to “restructure thousands of institution-specific policies and procedures in order to comply with scores of new administrative mandates.”

“A hasty rush to ‘get into compliance’ by Aug. 14 will almost assuredly negatively affect the quality of the policies and procedures that institutions scramble to craft in order to meet the arbitrarily set deadline,” the institutions wrote. “College and university staffs are in a zero sum game in terms of their available bandwidth at this time.”

The department pointed out that similar rules took effect far more quickly under previous administrations, citing the 47 days that schools had to come into compliance with rules issued in 1975, and 30 days they had in 2000 and 2006.

“No one seemed to complain when the Obama administration’s ‘dear colleague letter’ took effect immediately,” the department said, referring to guidelines issued in 2011 and 2014 that DeVos’ rule would replace.

But plaintiffs say the rules are far more consequential than the Obama-era guidelines.

“The rule will reverse decades of effort to end the corrosive effects of sexual harassment on equal access to education — a commitment that, until now, has been shared by Congress and the executive branch across multiple elections and administrations,” the attorneys general lawsuit said.

The law center’s suit also argued that the department violated the Administrative Procedure Act, which governs how regulations are drafted and enforced, by including new provisions that had not been included in the proposed rules, such as a requirement that recipients dismiss complaints if the victim graduated or transferred.

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