Eighteen state attorneys general are suing over the Department of Education's new regulations, but some experts worry the lawsuit will do more harm than good.
In May, Education Secretary Betsy DeVos announced changes to the Department of Education’s Title IX, a federal civil rights law that protects people from discrimination on the basis of sex in education programs or other activities receiving federal financial assistance. The law is commonly applied to protect survivors of sexual assault and harassment on school campuses.
Critics of the new rules, including representatives of survivor advocacy organizations and 18 state attorneys general, argue that DeVos’s changes will “reverse decades of effort to end the corrosive effects of sexual harassment on equal access to education,” but it’s unclear whether their efforts to oppose the changes are helping or harming student survivors.
Diana Whitney, a sexual assault survivor from Dartmouth College and a founding member of the advocacy group Dartmouth Community Against Gender Harassment and Sexual Violence (DCGHSV), was appalled when she first read the new Title IX rules.
“I was horrified as a survivor of campus rape [and] as an advocate now for survivors,” Whitney told WhoWhatWhy.
DCGHSV is a multigenerational advocacy group that includes Dartmouth alumni, undergraduate and graduate students, faculty, and other supporters and affiliates. It was formed in the wake of a 2018 class action lawsuit against Dartmouth College that was filed by nine plaintiffs and sexual assault survivors. The group collaboratively supports members of the Dartmouth community who have suffered gender-based harassment and/or sexual violence, and advocates for institutional change to protect survivors and ensure all students can safely access education.
Protecting students through institutional change, according to a press release from the Department of Education, is also the goal of the new changes to Title IX, which took effect August 14. Key provisions in the regulations include a “consistent, legally sound framework” that survivors, the accused, and schools can rely on with the intent that sexual misconduct is taken seriously and those accused know their guilt is not predetermined.
These rules include a narrow redefinition of what constitutes sexual harassment. Additionally, they have changed the necessary degree of evidence for a sexual harassment case to move forward from “a preponderance of evidence” to “clear and convincing” evidence against the alleged assailant.
“The new rules seem to protect perpetrators at the expense of victims.”
The new rules also require survivors to participate in mandatory live, in-person cross-examinations with the accused offender present. While representatives in these hearings are required, these representatives don’t actually have to be lawyers; under the new guidelines the accused may choose whomever they wish to represent them, including friends, parents, classmates, or teammates.
“The process [of reporting sexual assault on campuses] will be more traumatic,” Whitney said. “To think a victim would have to face [mandatory live hearings and cross-examinations] in order to come forward… people aren’t going to come forward. It’s hard enough anyway.”
In addition to potentially discouraging survivors from coming forward, this rule is specifically intended to give the accused the appearance of innocence so that adjudication is biased in their favor, according to opponents of the Title IX changes.
“The new rules seem to protect perpetrators at the expense of victims,” Whitney said. “That was the goal. Not to make it easier for victims of sexual harassment or assault to come forward, but to actually make it harder.”
Other regulations include scrapping the 60-day turnaround timeline that allows students to know where their case stands, and no longer requiring schools to handle any sexual harassment or abuse cases that are deemed to have occurred off campus property.
In fact, the new rules actually require institutions to dismiss a claim if the alleged incident occurred off campus, including spaces hosting academic and extracurricular activities, such as study abroad programs, conventions, and academic conferences.
“The law requires schools to ignore victims in many cases, or to deny them fair treatment,” Whitney said. “I think [the new rules] will absolutely have a chilling effect on students coming to report after they’ve been sexually harassed or assaulted.”
The Department of Education stated that the new policy “holds schools accountable for failure to respond equitably and promptly to sexual misconduct incidents and ensures a more reliable adjudication process that is fair to all students.”
DeVos is quoted in the press release saying, “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process. We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that fight continues.”
These changes come “after years of wide-ranging research, careful deliberation, and critical input from survivors, advocates, falsely accused students, school administrators, Title IX coordinators, and the American people, including over 124,000 public comments,” the press release continued.
While the Department of Education has taken considerable measures to make the process more fair to all students and to avoid false accusations, studies have found that the prevalence of false reporting of sexual assault is between 2 percent and 10 percent, according to the National Sexual Violence Resource Center. The resource center also stated in their report that research shows “rates of false reporting are frequently inflated, in part because of inconsistent definitions and protocols.”
In their 119-page lawsuit against the Department of Education, attorneys general from 18 states maintain that students will “return to school in the fall with less protection from sexual harassment” due to DeVos’s changes.
Secretary of Education Betsy DeVos speaking at the 2017 Conservative Political Action Conference (CPAC) in National Harbor, MD. Photo credit: Gage Skidmore / Flickr (CC BY-SA 2.0)
New Jersey Attorney General Gurbir S. Grewal spearheaded the lawsuit with California Attorney General Xavier Becerra and Pennsylvania Attorney General Josh Shapiro. Grewal stated in a press release for the lawsuit: “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.
“Because of the US 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 added.
This includes students who attend elementary and high schools, where students in general have a much more limited ability to report harassment and be taken seriously, according to Whitney, a mother of two teen daughters.
In an official press release Becerra stated, “Instead of safeguarding critical protections for survivors of sexual violence, the President waters them down. This is 2020, not 1920. Our focus should be on protecting our students and families, not burdening academic institutions with complicated, backward regulations.”
In the midst of a global pandemic and widespread uncertainty about how academic institutions will operate in the fall, this appears especially true. Critics of the new rules have protested that the 2,000-page document is too complex for students or parents to fully comprehend in order to protect their rights, and that the August 14 deadline didn’t allow students or schools enough time to address these new guidelines — especially since they are currently tasked with figuring out how to protect public health and provide academic instruction under extreme circumstances.
“So many students are struggling more than ever,” Whitney said. “They’re struggling financially, emotionally due to COVID-19, and so to have [the new Title IX rules] start on August 14 is just a really harsh awakening.”
In the past few weeks, several students have added their names to the National Women’s Law Center lawsuit against DeVos and the Department of Education. They have joined the effort to block the new regulations by adding their voices and personal experiences.
The group of students who have entered the lawsuit includes a fifth grade girl from Michigan who, according to the New York Times, is scared that the new Title IX rules will mean her elementary school won’t investigate a classmate who she claims assaulted her multiple times within a matter of months.
Other students who have added their names worry that their current sexual assault cases will now be thrown out, or are living in fear of facing their attackers in a live hearing, including a student whose alleged assailant is her former professor.
“Sexual violence plagues our schools and survivors deserve to be heard… this final rule puts the health and safety of students in the rear-view mirror,” Becerra stated, referring to the new rules put in place by DeVos. “Rather than making our schools safer, Secretary DeVos and President Trump are making it harder for students to come forward in the face of sexual harassment.”
Some Title IX advocates worry that these lawsuits against the Department of Education do not go far enough in opposing DeVos’s changes and protecting student survivors. Consequently, some experts believe they may do more harm than good.
Wendy Murphy is an adjunct professor of sexual violence law at New England Law Boston and has been an impact litigator in cases of campus sexual assault since the early 90s. Her monumental work in sexual violence litigation on campuses includes groundbreaking victories such as the Harvard College campus court case in 2002 and the Harvard Law School and Princeton University cases in 2010, which led to widespread policy reforms.
Wendy Murphy, adjunct professor of sexual violence law at New England Law | Boston, speaks at the Community Media Day Free Speech Audio/Visual Open Mic on September 20, 2018. Photo credit: belmontmedia / YouTube
Murphy told WhoWhatWhy that DeVos is being sued on the grounds that as an agency head DeVos can only issue new regulations that further the purpose of the Title IX statute — which is not true of the changes announced in May.
“The purpose of the statute is to create equality for women in education, so you can’t issue regulations that create inequality or subject women to inequality,” Murphy said.
But Murphy isn’t convinced that the lawsuit filed by the attorneys general is going to do much to improve the situation for sexual assault survivors, especially because, as she explained, the attorneys general don’t explicitly demand equality for women anywhere in the lawsuit.
“I think their lawsuit is dangerous, because they don’t even ask for equal treatment of women… [their lawsuit] is one-hundred and some odd pages long, but they don’t ask for anything. In fact, on the contrary.”
According to Murphy, not only do the attorneys general not ask for equal treatment for women, but they actually weaken the rights not only of sexual assault survivors on campus but students of color as well. In the lawsuit, the attorneys general ask that the same standard of protection that applies in cases of racial discrimination on campus — also known as Title VI — be applied to cases of sexual assault. However, the lawsuit includes a narrow definition of what constitutes racial discrimination, which Murphy argues is overly restrictive, legally incorrect, and makes applying this standard to cases of sexual assault a dubious process.
“In the lawsuit the attorneys generals have filed, they mention the standard applied to race [based cases on campus] in Title VI and they say the definition of an offense under Title IX should match the definition of an offense under Title VI. And then they cite the definition of an offense under Title VI, and it’s not the actual definition and … it’s a much more difficult to prove definition,” Murphy explained.
In the wake of the killing of George Floyd, and in the midst of ongoing Black Lives Matter protests and increased discussion of issues affecting the Black community, Murphy says that, now more than ever, it is incredibly important for us to interrogate and root out racism in our country; she fears that the attorneys general’s lawsuit will not only have a negative impact on sexual assault survivors but on Black students generally, and especially Black transgender and female students.
“The attorneys general’s lawsuit is trying to change the definition of a race-based offense to make it harder to prove a race-based offense. And then they’re arguing that that more difficult burden should be the same burden that’s applied to Title IX. So they’re not only not actually helping with the Title IX problem, they’re hurting race cases in the same lawsuit.”
Whitney agrees that intersectionality must factor into discussions of Title IX, and echoes the belief that the negative effects of the new Title IX rules will hit the BIPOC (Black, Indigenous, and people of color) and LGBTQ+ communities even harder.
“All of these consequences are felt disproportionately worse for the more marginalized groups on campus,” Whitney told WhoWhatWhy, noting that these groups often have a higher risk of not being believed when they report an assault.
In addition, Murphy fears that this “segregation and subjugation” that women will be subjected to under the new rules will eventually trickle down to other people. This has led Murphy to develop plans for filing her own lawsuit against DeVos, which she intends to keep as a 10-page document that gets to the heart of the matter.
“If the statute that you’re acting under says you have to treat women as equals, you can’t have regulations that don’t treat women as equals. And that should be the focus of the lawsuits, and that is my plan to file a lawsuit that does exactly that.”
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Despite the flaws with the attorneys general’s lawsuit, Whitney said she hopes that ultimately it “has some power to it” and can aid in the protection of student survivors.
“I want to have hope that these various different lawsuits, but especially [the attorneys general’s lawsuit] with the eighteen states acting together, that this would be able to at least slow [DeVos’s changes] down.”
In order to create more impactful and helpful regulations, Whitney also believes that sexual assault survivors need to be a part of the conversation. She suggests having survivors participate in educational policy making, and believes administrations must engage in “radical listening” to survivors in order to better understand their experiences of sexual assault and harassment on campus.
“I think looking at diverse hiring and making sure all student groups are represented in the administrators [is important],” Whitney said.
She continued, explaining that for real change to occur to protect and support students everywhere, there needs to be “enough women who are at the top.”
Related front page panorama photo credit: Adapted by WhoWhatWhy from Charles Edward Miller / Flickr (CC BY-SA 2.0) and Molly Adams / Flickr (CC BY 2.0).
