ACLU sues Betsy DeVos over new campus sexual assault rules

The suit says Title IX changes will make it "more difficult for victims of sexual harassment or sexual assault to continue their educations."
Image: Meghan Downey protests as Education Secretary Betsy DeVos announces changes in federal policy for investigating reports of sexual assault on college campuses in Arlington, Va., on Sept. 7, 2017.
Protesters opposing Education Secretary Betsy DeVos' changes to federal policy for investigating reports of sexual assault on college campuses gathered in Arlington, Va., on Sept. 7, 2017.J. Lawler Duggan / The Washington Post via Getty Images file

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By Erik Ortiz

Education Secretary Betsy DeVos' revised federal guidelines on how sexual assault allegations should be handled on college and K-12 campuses are the target of a federal lawsuit filed Thursday claiming that the changes would "inflict significant harm" on victims and "dramatically undermine" their civil rights.

The suit, filed on behalf of four advocacy groups for people who have been sexually assaulted, including Know Your IX and Girls for Gender Equity, is the first that seeks to block the Education Department's new provisions before they go into effect on Aug. 14.

The rules championed by DeVos effectively bolster the rights of due process for those accused of sexual assault and harassment, allowing for live hearings and cross-examinations. It's what agency officials say was lacking during the Obama administration to protect all students under Title IX, a 1972 law that prohibits gender discrimination, including sexual assault, at schools.

"This new federal effort to weaken Title IX makes it more difficult for victims of sexual harassment or sexual assault to continue their educations and needlessly comes amid a global pandemic," according to the suit, which was filed in U.S. District Court in Maryland by the American Civil Liberties Union and the New York-based law firm Stroock & Stroock & Lavan LLP.

The suit names DeVos, the Education Department and Kenneth Marcus, the agency's assistant secretary for civil rights.

DeVos last week denied that the final rule would discourage accusers from coming forward to report abuse, saying that it instead allows for schools to be more balanced in how they review claims, rather than through what she called a "kangaroo court" approach.

"We can continue to combat sexual misconduct without abandoning our core values of fairness, presumption of innocence and due process," DeVos told reporters.

How schools should address sexual assault allegations comes as the larger #MeToo movement focuses on claims of misconduct that might otherwise go ignored. Schools that fail to adhere to Title IX requirements risk losing federal funding.

Advocates for sexual misconduct suspects and some civil liberties organizations have argued that the guidance under the Obama administration was too loose and didn't properly afford the accused a presumption of innocence or hold schools to a standard of impartiality.

The ACLU is among several groups that threatened legal action to halt the final changes, warning that the Education Department it would "see you in court."

Advocates are concerned that students are "required to jump through hoops" to persuade their schools to even open investigations, Ria Tabacco Mar, director of the ACLU's Women's Rights Project, said Thursday.

The suit, she said, challenges Title IX regulations that will redefine sexual misconduct in narrower terms — as misconduct "so severe, pervasive and objectively offensive" that it "denies a person equal access to the school's education program or activity." (The definition comports with how the Supreme Court regards sexual harassment.)

But Tabacco Mar argued that it creates a "double standard" for how schools must treat sexual discrimination complaints compared to how they handle allegations of racial, national origin and disability discrimination.

In addition, the suit takes issue with how the rule will allow colleges to investigate complaints that are made only through a formal process and to certain officials, as opposed to any school employee. (The rule, however, does permit complaints in K-12 schools to be shared with any employee, which then must trigger an investigation.)

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The suit also argues that schools, under the final rule, can willfully ignore certain sexual assault complaints alleging incidents that might occur off campus or during study abroad programs and can use a higher standard of proof to determine whether an accused student violated a code of conduct policy.

According to the suit, that would place "a heavier burden on those alleging sexual harassment than on students who allege other forms of harassment."

Angela Morabito, a spokeswoman for the Education Department, said Friday that the final rule simply codifies guidelines that hold schools to the same standards and ensures "no survivor is brushed aside and no accused student's guilt is predetermined."

"The ACLU, which used to defend civil liberties, should be supporting such an approach," Morabito said in response to the lawsuit. "Instead, they're helping schools trample on basic due process and gut protections for survivors to serve an ideological agenda where the ends justify the means."