Democratic attorneys general in more than a dozen states filed a federal lawsuit Thursday attempting to block Education Secretary Betsy DeVos' new policy guiding schools and colleges in the handling of sexual assault cases.
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The lawsuit alleges that DeVos' policy undercuts existing mandates in Title IX, the 1972 law barring discrimination based on sex in education. It also challenges DeVos' order to implement the rules by Aug. 14, saying the deadline is impracticable during a pandemic.
The case is being led by attorneys general in Pennsylvania, New Jersey and California, with backing from a total of 17 states and the District of Columbia.
“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,” Pennsylvania Attorney General Josh Shapiro said. “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.”
The Education Department declined to comment on the lawsuit but said the rules “protect all students by requiring schools to follow a reliable, transparent, and fair process in handling complaints of sexual misconduct.”
DeVos issued her rules May 6 after rescinding earlier guidelines from the Obama administration in 2017. DeVos' new policy bolsters the rights of the accused, narrows the definition of sexual harassment and allows students to question one another at live hearings, among other changes.
According to the lawsuit, the policy clashes with other federal and state laws and Supreme Court precedent. It says the policy forbids schools from addressing isolated cases of abuse because the new definition of sexual harassment is limited to “pervasive” cases.
It also alleges that schools would be blocked from investigating sexual abuse complaints from former students or cases arising at off-campus apartments, which are not deemed to be “under the substantial control” of the school under the new policy.
The attorneys general argue that the policy creates “procedural barriers” for schools and discourages students from filing complaints.
“As a result, fewer sexual harassment complaints will be filed, and schools will be less well equipped to protect their students’ safety and rid their programs and activities of the pernicious effects of sex discrimination,” the suit alleges.
Victims' advocates say rules created under former President Barack Obama forced colleges to confront sexual abuse after sweeping the issue aside for years. But DeVos has said the guidelines turned campus disciplinary panels into “kangaroo courts" that were too quick to deal judgment against accused students.
The Education Department finalized the new policy after reviewing more than 120,000 public comments. It softened some provisions from an earlier proposal, and for the first time clarified that dating violence and stalking must be addressed under Title IX.
But the lawsuit says the final rules also included new provisions “that are not a logical outgrowth of the proposed rule,” and it alleges that the Education Department failed to provide the public with data and analysis used to create the policy.
Schools and colleges have urged DeVos to reconsider the Aug. 14 deadline, which the lawsuit says will be impossible to meet as schools deal with fallout from the coronavirus and prepare for next fall.
It says schools across the nation “will be required to completely overhaul their systems for investigating and adjudicating complaints of sexual harassment in less than three months, in the midst of a global pandemic that has depleted school resources.”
The suit asks a federal judge to declare the policy unlawful, postpone its effective date during a judicial review and block the department from enforcing the rules.
In its statement, the Education Department countered that, even amid the pandemic, schools are still receiving Title IX complaints as students learn remotely.
“Civil rights are not on hold during this pandemic,” the department said. “To pretend otherwise is to let students down.”