Attorneys general in 17 states and the District of Columbia brought a lawsuit against the U.S. Department of Education over new Title IX regulations on sexual assault investigations on college campuses. The suit, filed June 4, alleges that the changes “undercut Title IX’s mandate to eradicate sex discrimination in federally funded education programs and activities” and “discourage students and others from making sexual harassment complaints.”
The lawsuit asks the U.S. District Court for the District of Columbia to delay the implementation of the new measures as well as declare them unlawful.
“This is a political press release masquerading as a lawsuit,” Department of Education press secretary Angela Morabit said in a statement to The Heights. “The Department does not comment on pending litigation. The new Title IX rules protect all students by requiring schools to follow a reliable, transparent, and fair process in handling complaints of sexual misconduct. It codifies into law for the first time that sexual harassment is sex discrimination.
“We know that schools are still receiving Title IX complaints while students learn at a distance, and civil rights are not on hold during this pandemic. To pretend otherwise is to let students down. Due process rights are survivors’ rights – everyone deserves to be treated fairly, and that’s what our rule requires.”
Title IX is a 1972 civil rights law that prohibits sex discrimination in any education program receiving federal funding. The Obama administration in two documents reinterpreted the law to allow the federal government to guide how colleges must investigate and adjudicate sexual assault and harassment. The Obama administration’s regulations discouraged live cross-examination of involved parties and mandated the preponderance of evidence standard in finding responsibility—which requires a conclusion that it is more likely than not that an allegation is true.
Massachusetts public colleges and universities received $562 million from the Department of Education in the 2019 fiscal year and are scheduled to receive nearly $584 million in the 2020 fiscal year, according to the lawsuit.
Secretary of Education Betsy DeVos rescinded the Obama administration’s documents in 2017 and began the process of shaping a new regulatory regime in 2018. The department released new rules last month, which DeVos said would restore due process to the Obama-era “kangaroo courts,” according to the Associated Press.
The new regulations require colleges to mandate a live hearing with cross-examination between the involved parties and witnesses, narrow the definition of sexual harassment, and diminish the locations and circumstances that schools have responsibility over.
While the old rules defined sexual harassment as any “unwelcome conduct of a sexual nature,” the new ones limit it to behavior that “a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal education access.” Schools are also no longer obligated to open investigations into off-campus behavior unless the school has “substantial control over” the location, such as a building owned by a student organization. The new rule also bars former students—including those who left due to sexual violence—from opening a Title IX complaint.
The new rules also formally permit schools to choose between the preponderance of evidence standard and the “clear and convincing” standard, which means that it is substantially more likely than not that the allegation is true. This option has been available since 2017, though no schools have utilized this standard, according to KC Johnson, a Title IX scholar and Brooklyn College professor.
During a period of public comment following the rules’ proposal, critics of the new rule—including the Association of Independent Colleges and Universities in Massachusetts, which includes Boston College—said that the changes would deter victims from coming forward. Much of the concern was particularly focused on the requirement that representatives for the parties be allowed to conduct cross-examination.
The 18 attorneys general, including Massachusetts Attorney General Maura Healey, wrote in the lawsuit that the changes will diminish the number of sexual harassment and assault complaints filed, making campuses less safe for students.
“If the Rule is permitted to take effect, students across the country will return to school in the fall with less protection from sexual harassment,” the lawsuit reads. “The Rule will reverse decades of effort to end the corrosive effects of sexual harassment on equal access to education.”
The lawsuit also cites the timeline for the new changes as burdensome to schools wishing to engage with students, parents, and other stakeholders in making these changes during the COVID-19 pandemic. Universities have until Aug. 14 to update their investigatory procedures, which will lead to “rushed policies,” “confusion,” and “mistrust,” according to the lawsuit.
The suit alleges that the new rules diminish a school’s ability to open a Title IX investigation into sexual harassment due to the diminished scope of behavior and the narrower set of circumstances covered by the law. Students will have to endure much more harassment to reach the “severe, pervasive, and objectively offensive” standard, according to the lawsuit.
The lawsuit also cites the exclusion of former students and off-campus incidents as examples of schools’ diminished ability to open Title IX investigations.
In a previous interview with The Heights, Associate Vice President for Student Health and Wellness and Student Title IX Coordinator Melinda Stoops said that BC may continue to address and investigate harassing behavior that no longer falls under the new Title IX regulations using the Code of Student Conduct.
The new regulations explicitly allow schools to use a separate conduct process to address such behavior.
Massachusetts law concerning sexual violence at educational institutions hews closer to the Obama-era definition of sexual harassment, which the lawsuit argues would force all Massachusetts colleges to construct a separate conduct system. The state definition of sexual harassment includes conduct that has the effect of “unreasonably interfering with an individual’s education by creating an intimidating, hostile, humiliating or sexually offensive educational environment.” It also deems sexual harassment an “unfair” educational practice.
The lawsuit acknowledges that schools may use another grievance process to resolve now-excluded cases but argues that the new rule creates an “inequitable if not perverse” incentive to do so, as schools risk losing federal funding for noncompliance with Title IX but have no motivation to investigate incidents that fall just outside of the new definition. The lawsuit also argues that the separate processes would be burdensome to schools and lead to confusion, possibly causing delays.
The attorneys general also wrote that the live cross-examination by accused students’ representatives will “chill” reporting of sexual violence by intimidating victims who may wish to come forward. The possibility of cross-examination could serve as a source of trauma and create a “litigation-like environment,” the lawsuit alleges.
Statements from students who do not submit to cross-examination cannot be used by the school in determining responsibility, although schools may not use a student’s refusal to participate as evidence against them.
The lawsuit notes that the new rules reject other investigative methods such as the common submitted questions model, in which students or their advisers submit questions to a neutral third party during cross-examination, usually a panel.
In a press release, Healey’s office wrote that the procedural changes in the regulations “will reduce the number of reports and investigations and undermine the ability of schools to provide a fair process to all students.”
The lawsuit, which asks the court to postpone the Aug. 14 deadline and declare the rules unlawful, argues several justifications for the court to take action.
The first argument is that the new regulation’s narrower definition and scope of sexual violence violates Title IX’s protection from discrimination. The second is that the mandatory dismissal of complaints that fall outside the new scope from the Title IX process and the overriding of existing grievance procedures do not actually further Title IX’s purpose, which is itself a violation of Title IX.
The third allegation is that the new regulations violate the Family Educational Rights and Privacy Act, which protects student privacy and forbids the release of student records without the student’s written consent. The lawsuit alleges that the new rules force schools to share student records with the other parties as part of the evidence-gathering process in violation of FERPA.
FERPA defines “educational records” as “records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution.”
The suit maintains that since any information directly related to a student held by the school is covered under FERPA, the new rule conflicts with the law.
Schools can share student records with outside parties to comply with a judicial order or subpoena, according to the Department of Education, neither of which would be present in a university-led Title IX investigation. There is an exception, however, that allows information to be shared with “school officials,” which includes attorneys and parties “to whom the school has outsourced institutional services or functions,” among others.
The fourth cause of action alleges that the Aug. 14 deadline and several procedural changes are “arbitrary and capricious” by offering explanations that run counter to available evidence.
The final cause of action argues that the public comment period—a requirement for regulations to carry the force of law—involved a set of proposed regulations substantially different from the final product. The lawsuit cites several sections of the rule involving the dismissal, consolidation, and filing of complaints as having appeared without proper notice to the public.
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