California Attorney General Xavier Becerra. Photo: Diego M. Radzinschi/ALMA coalition of state attorneys general announce it is suing the Trump administration over its decision to weaken Title IX protections.
California Attorney General Xavier Becerra, Pennsylvania Attorney General Josh Shapiro and New Jersey Attorney General Gurbir Grewal are leading the group in a suit arguing that a new Trump administration rule undermines the purposes of Title IX.
The suit was filed Thursday in U.S. District Court for the District of Columbia. It seeks to block implementation of the rule, which the attorneys general say undermines Title IX’s requirements that students be able to learn in an environment free from discrimination based on sex, and free from sexual violence and harassment.
With schools facing impending budget cuts due to COVID-19 and current resources already stretched thin, the rule and its unreasonable time frame for compliance will force schools to divert attention away from efforts to confront the challenges of a pandemic while simultaneously weakening core protections for students, Becerra said in a statement.
The suit is believed to be the first to challenge the revisions to Title IX, said Sarah Lovenheim, a spokeswoman for Becerra.
“From mocking the #MeToo movement to pushing this backward rule that makes our schools less safe, President Trump wears his disdain for gender equality and safety on his sleeve,” Becerra’s statement said. “This is 2020, not 1920. Our focus should be on protecting our students and families, not burdening academic institutions with complicated, backward regulations.”
“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,” Shapiro said in a statement. “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.”
“If any Pennsylvania student is sexually harassed, or if any Pennsylvania student is accused of sexual harassment, they deserve to have a fair process. Secretary DeVos has exceeded her authority by issuing regulations that make this important right nearly impossible to achieve in practice, all while reducing protections for victims,” Shapiro said.
“Because of the U.S. Department of Education’s new regulations, students who return to campus this fall will be less well protected from sexual violence than any students in a generation,” Grewal said in a statement. “We won’t let that happen here in New Jersey. We won’t stand by as the federal government undermines the civil rights of our students. School disciplinary proceedings should be fair and equitable regardless of the subject matter. Unfortunately, the federal government has singled out sexual violence cases and made it harder to find the truth and do justice in those cases alone.”
Angela Morabito, press secretary at the U.S. Department of Education, declined to address the suit directly, but said 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. “Due process rights are survivors’ rights–everyone deserves to be treated fairly, and that’s what our rule requires,” Morabito said.
Becerra and the other attorneys general argue that the Trump administration rule substantially narrows the definition of sexual harassment, and limits the scope of Title IX’s coverage, effectively denying protection to students who are sexually assaulted in off-campus housing or on the way to or from school. In addition, they say the new measure creates harmful barriers to formal complaint filing and investigation, including by barring students from filing complaints if they have dis-enrolled from school because of sexual violence; and potentially subjects students to online harassment by eliminating confidentiality protections in the investigation process.
The Department of Education, under Secretary Betsy DeVos, announced the revisions to Title IX on May 5. In 2018 the department sought feedback on the proposed changes and received nearly 100,000 responses. The revisions include a narrowed definition of sexual harassment as “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 recipient’s education program or activity” and a mechanism for cross-examination of both the accused and accuser by an attorney or other third party.
In announcing the changes, Assistant Secretary Kenneth Marcus of the Department of Education’s Office for Civil Rights said in a statement, “The new Title IX regulation is a game-changer. It establishes that schools and colleges must take sexual harassment seriously, while also ensuring a fair process for everyone involved. It marks the end of the false dichotomy of either protecting survivors, while ignoring due process, or protecting the accused, while disregarding sexual misconduct. There is no reason why educators cannot protect all of their students—and under this regulation there will be no excuses for failing to do so.”
The American Civil Liberties Union has criticized the revised version of Title IX, particularly its provisions imposing an unduly narrow definition of sexual harassment, narrower than that used for racial harassment; relieving schools of the obligation to investigate many instances of student-on-student harassment or assault that occur off campus; allowing schools to adopt unreasonable responses to complaints and holding them responsible only if their actions are deliberately indifferent; and allowing schools to apply a clear and convincing evidence standard of proof.
Janet Napolitano, president of the University of California system and former U.S. Secretary of Homeland Security under President Barack Obama, called the new rules “misguided” and said they sought to reverse hard-fought gains against college sexual misconduct. “UC opposes these ill-conceived changes and, in spite of them, will continue our hard-won momentum through education, prevention, and processes that are fair and compassionate to all parties,” Napolitano said in a statement.
Becerra, Shapiro and Grewal were joined in the suit by the attorneys general of Colorado, Delaware, the District of Columbia, Illinois, Massachusetts, Michigan, Minnesota, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.
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