Federal lawsuit against new Title IX guidance claims it is ‘offensive’ and ‘discriminatory’

The complaint calls the rules "reckless."

Education Secretary Betsy DeVos speaks about proposed changes to Title IX, Sept. 7, 2017, at George Mason University Arlington, Va., campus. (CREDIT: AP/Jacquelyn Martin)
Education Secretary Betsy DeVos speaks about proposed changes to Title IX, Sept. 7, 2017, at George Mason University Arlington, Va., campus. (CREDIT: AP/Jacquelyn Martin)

The new Education Department guidance document on how universities should handle sexual harassment complaints under Title IX, the federal civil rights law that prevents sex and gender discrimination in education, has been challenged.

On Tuesday, Equal Means Equal, an organization focused on gender discrimination, and three women who say they have experienced sex-based discrimination under Title IX filed a federal lawsuit against Education Secretary Betsy DeVos and the Department of Education. The complaint argues that the department’s new guidance is “unlawful, arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law” and should be vacated and set aside. It says that the new rules violate Title IX, the First Amendment, the Administrative Procedures Act, and the Massachusetts Constitution’s Equal Protection Clause.

In September, the department rescinded 2011 guidance and 2014 sexual assault guidance that clarified the protections sexual assault survivors should be granted under Title IX. The new lawsuit focuses on the department’s “Q&A on Campus Sexual Misconduct” document. The document is supposed to help answer questions as the department goes through a comment period to overhaul guidance on Title IX and how to handle complaints involving sexual assault, which is sex-based discrimination.

Under the interim document, or the “Q&A,” there would be “no fixed time frame” for what qualifies a prompt investigation, schools can implement a process that allows only the accused to appeal a decision, and colleges are given the freedom to pursue mediation, which means alleged survivors would have to essentially work things out with the person they accused of sexually assaulting them. Colleges would also be able to use a higher burden of proof, the clear and convincing standard, rather than what is typically used for civil rights matters, preponderance of the evidence. Preponderance of the evidence is based on the probable truth or accuracy of the evidence, not the amount of evidence involved, but clear and convincing myst be substantially more probable to be true than not. By using a higher bar for a specific type of sex-based discrimination, people who face sex-based discrimination are put at a disadvantage for no real reason, DeVos hasn’t justified this different approach for one type of discrimination versus another. In addition, once the accused has been found responsible, universities are allowed to consider the effect of the consequence on the accused, but not on the victim.

The federal lawsuit involves three female plaintiffs who all have pending investigations at the department’s Office for Civil Rights or civil litigation under Title IX. The plaintiffs attended Stonehill College, Boston University, and The School of the Art Institute of Chicago.

“The DeVos rules are offensive, discriminatory, and unlawful,”  Wendy J. Murphy, who is counsel for the lawsuit, told ThinkProgress.

The complaint says that the DeVos rules in their entirety violate Title IX because they “permit schools to treat civil rights harms differently on the basis of sex.” The rules allow universities to use a more onerous burden of proof — the clear and convincing standard — in the case of a sex-based civil rights harm although the rules do not state that this standard can be used in other protected class categories, such as race and national origin. The preponderance of the evidence standard has long been the standard required under civil rights laws, the complaint argues. In 2004, the department sent a letter to Georgetown University that said it applied the wrong standard for sexual discrimination complaints by using the clear and convincing standard. The plaintiffs also argue that the redress of some claims would go through “absurd dual assessments”: 

For example, if a black woman were assaulted on the basis of her race and her sex at a school that opted to apply the “clear and convincing evidence” standard in sex-based matters, that single civil rights offense would be subjected to two different burdens of proof.

The lawsuit also mentions that the Q&A document does not have the authority to refer to certain provisions of the Campus SaVE Act, which updated the Clery Act, or apply criminal law definitions rather than civil rights definitions. The interim guidance keepreferring to the the SaVE Act even though the law uses criminal law definitions such as sexual assault rather than civil rights definitions such as “unwelcome” and “offensive” to determine an offense happened.

The complaint mentions that some of the women in the complaint already contacted the Office for Civil Rights and were given either incomplete answers about whether interim guidance would affect their investigations or were told the department couldn’t say the guidance wouldn’t affect them. Defense attorneys are already using the Q&A document to support legal briefs arguing against those who bring Title IX-related complaints, the plaintiffs say in their complaint.