Since shortly after taking office in 2017, U.S. Secretary of Education Betsy DeVos has made it a priority to change the way sexual harassment was handled in public K-12 schools, colleges, and universities. When DeVos’s Title IX rules became final in May 2020, students’ rights organizations weren’t happy. They filed a lawsuit within a week, but now that lawsuit has been dismissed. Find out what the Title IX rule means for students, and what’s next for student sex abuse advocates across the country.
Title IX of the Education Amendments Act is a federal law that was designed to protect students from discrimination at school on the basis of sex. Any K-12 school, college, or university receiving federal funding (nearly all of them) had to put in place procedures to respond to claims of sex discrimination.
In the 1990s and up through the Obama Administration, the Department of Education started issuing Title IX rules, called “Dear Colleague” letters, that said clearly that Title IX applied to sexual harassment as well. These Dear Colleague letters set out the process for responding to student survivors’ reports of sexual harassment and abuse. They also allowed a school to be held responsible if its administrators failed to appropriately respond to students’ complaints.
The federal government has stopped releasing data about sexual assault among school children. However, in the 2015-2016 school year, about 9,700 students reported sexual assault, rape, or attempted rape within their school districts. However, the DeVos Title IX rules could cause the number of reports to go down, even if the number of incidents doesn’t.
According to Betsy DeVos, the new Title IX rule “balances the scales of justice” by protecting the due process rights of those accused of sexual harassment or sexual assault. In fact, the rules make it harder and more embarrassing for student survivors to come forward by forcing them to confront their abusers in an open, in-person hearing where the abuser or his or her attorney can “confront” the victim, interrogating them. This ignores the trauma sex abuse survivors have suffered and that trauma’s psychological impact on survivors, including their memories, and how they interpret what happened to them.
The rule also redefines sexual harassment and increases the burden of proof from a mere tipping of the scales (preponderance of the evidence) to the highest level of proof required in civil court (clear and convincing evidence). Now, victims must prove that they suffered “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity. Because many instances of sexual harassment and sex abuse happen in private, this can create problems for survivors who have little more than their own stories to prove their case.
On top of all this, the rule also forgives schools who look the other way. A Title IX violation only occurs if the school is “deliberately indifferent” to this new tighter standard of sexual harassment. This will only aggravate the experiences student survivors are having already trying to get schools to take their allegations seriously. Without accountability, schools will find reasons to give abusers another chance or even disregard the reports entirely, even when there is severe mental, emotional, or physical harm to their students.
Because the new rule tips the scales in favor of abusers and schools against the victims of sexual harassment and assault, when the rules became official in May 2020, several students’ rights organizations were ready to file a Title IX lawsuit to get the new rules thrown out. The American Civil Liberties Union (ACLU), Know Your IX, the Counsel of Parent Attorneys and Advocates, Girls for Gender Equality and Stop Sexual Assault in Schools, filed a lawsuit in the federal District Court in Maryland saying that the way Betsy DeVos created the Title IX rules violated that state’s Administrative Procedures Act.
But on October 20, 2020, U.S. District Judge Richard Bennett threw the case out. He dismissed the complaint saying that the students’ rights organizations were not directly harmed by the rule, and didn’t have “standing” to sue. The advocacy groups had argued that the new regulations ran counter to their objectives and that they would have to divert resources to train activists in response to the rules. However, the judge said they could not provide evidence of an increase in training requests or additional spending.
The ACLU’s lawsuit may have been the first to challenge DeVos’s rules, but it won’t be the last time those rules show up in court. The attorneys general from 17 states and the District of Columbia have filed their own lawsuit trying to keep the policy from going into effect. The State of New York has filed a separate complaint as well. So far, judges have been hesitant to act, but these lawsuits don’t have the same standing issues as the one filed by the students’ rights organization.
That means they are likely to continue well into the next year. The incoming Biden Administration has already indicated it may be looking for ways to put a “quick end” to the policies and “return to and then build on” the Dear Colleague” letters from the Obama Administration. While the formal rule-making process for education policies is long and complicated, a settlement in the attorneys general case may provide quicker relief to student survivors and their advocates.
At Eisenberg & Baum, LLP, our sexual harassment attorneys and sex abuse advocates help students facing sexual harassment on campus. If you are facing a hostile educational environment, we can help you make sure your complaints are heard. Contact Eisenberg & Baum, LLP, today to talk to a sexual harassment attorney.