Know Your IX Sues Betsy DeVos for Allowing Schools to Ignore Sexual Harassment and Assault

May 14, 2020

Washington, DC — Know Your IX (a project of Advocates for Youth), the American Civil Liberties Union (ACLU) and Stroock & Stroock & Lavan LLP filed a lawsuit today to block provisions of the U.S. Department of Education’s new Title IX rule, which will slash schools’ obligations to respond to reports of sexual harassment and assault. The rule subjects reports of sexual harassment to a different and more skeptical review than reports of harassment based on race, national origin, or disability — creating a second-class standard for reports of sexual harassment and assault. The department itself anticipates that four-year institutions will now investigate 32 percent fewer reports of sexual harassment and assault.

The suit was filed on behalf of plaintiffs Know Your IX (a project of Advocates for Youth), Council of Parent Attorneys and Advocates, Girls for Gender Equity, and Stop Sexual Assault in Schools – all organizations dedicated to helping students who experience sexual harassment and assault continue their education.

The plaintiffs are challenging provisions in the DeVos Title IX regulations that:

  • Redefine sexual harassment to exclude conduct that until now was included in the department’s definition and that would be recognized as harassment if based on race, national origin, or disability;
  • Direct schools to ignore many Title IX reports of sexual harassment and assault that occur off campus or during study abroad, including in student’s homes;
  • Require college and university students to report sexual harassment or assault to the “right” official or their complaints do not have to be even investigated; and
  • Allow — and, in some cases, require — schools to use a higher standard of proof for reports of sexual harassment and assault than is required for other harassment proceedings.

The U.S. Department of Education released the final rule on May 6, 2020.

The comments are from the following:

Sage Carson, manager of Know Your IX, a project of Advocates for Youth: “Betsy DeVos and the Trump administration have shown, once again, that they have no interest in supporting student survivors and their rights. The final Title IX rule makes it harder for survivors to report sexual violence and easier for schools to sweep sexual violence under the rug. Know Your IX has been fighting for the rights of survivors for almost a decade and we refuse to back down.”

Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project: “Betsy Devos has created a double standard that is devastating for survivors of sexual harassment and assault, who are overwhelmingly women and girlsWe will fight to make sure this double standard never takes effect.”

Selene Almazan, legal director, Council of Parent Attorneys and Advocates: “The regulations absolutely fail to consider the experiences, challenges, and needs of students with disabilities, who already face additional barriers to education. In developing the regulations, it’s unfortunate the Administration chose to ignore research and best practices that fully support the rights of students with disabilities.”

Ashley C. Sawyer, policy director at Girls for Gender Equity“The new Title IX regulations are a blatant threat to the years of work to create safe, supportive academic environments for students across the gender spectrum.  We want to do everything we can to ensure that the true spirit and original intent of Title IX remains, to ensure that everyone has meaningful access to education, without being hindered by sexual violence.”

Joel Levin, co-founder of Stop Sexual Assault in Schools: “Sexual harassment and assault have no place in our schools. In a reprehensible move that puts students at risk, the new rule gives schools more leeway to ignore their Title IX responsibilities.”

Media inquiries please contact info@knowyourix.org

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March 31, 2020

Dear University Presidents and Title IX Administrators,

We are in the midst of a national emergency, and meeting the needs of survivors of sexual assault and other forms of sexual harassment must be part of educational institutions’ emergency response. We therefore write to urge you to proceed with prompt and equitable sexual misconduct investigations and hearings during this period of remote learning. As schools move online to stop the spread of COVID-19, we have heard from survivors across the country who shared that their cases are stuck in limbo. Some Title IX Coordinators have remained silent on how the cases will be impacted; worse yet, others have delayed the cases indefinitely. As survivors and survivor advocates, we know that unnecessary delays in sexual misconduct cases can compound survivors’ trauma, lead them to drop cases they would otherwise pursue, and push them out of school, all of which inhibit their access to education. We know that this moment is unprecedented, but that is not a justification for putting the civil rights of students on hold. Schools must continue to uphold survivors’ right to an education free from discrimination, not put those rights on the back-burner.

To be clear, schools’ logistical obstacles are not a sufficient justification for forcing students to forgo their right to a prompt and equitable process to address and redress sexual violence and other forms of sexual harassment. Meaningfully enforcing civil rights is not an obligation that dissipates in the face of institutional hardships–even during these unprecedented times. Student survivors rely on sexual misconduct proceedings for the restoration of their right to safely access education and the prevention of future harms. At the very least, when schools deem timeline changes necessary, students are entitled to prompt and clear communication of those delays in the enforcement of their rights –– and a thorough explanation of their necessity.

Some who advocate for respondents have declared that moving forward with sexual misconduct proceedings during remote learning would violate the rights of respondents. This blanket statement rings hollow. Both complainants and respondents have a vested interest in the prompt and equitable resolution of sexual misconduct allegations, and these interests are not automatically displaced by circumstances of remote learning. The stakes for both complainants and respondents in these cases are not insubstantial, and schools must continue to honor their obligation to effectively and efficiently resolve allegations of sexual misconduct through this period of remote learning.

To ensure that schools respect the rights of all parties involved in sexual misconduct cases during this period of remote learning, we advise schools to:

  1. Hold hearings and conduct investigations as scheduled through remote channels. In-person hearings are not legally required for student discipline proceedings; video hearings provide sufficient opportunity for face-to-face contact and real time response between the fact finder and the parties as in-person proceedings.
  2. Maintain enforcement of no-contact and stay away orders. Despite parties being off campus, parties may still live in proximity to each other and regardless the threat of cyber harassment still lingers. Any no-contact or stay away order should remain fully enforceable. While the consequences for the respondent might look different, the diligence with which the school undertakes its investigations should not.
  3. Provide survivors with all academic accommodations to which they are entitled, regardless of whether a formal complaint has been filed.
  4. Continue to offer free counseling services as necessary for the complainant, shifting to tele-mental health services to ensure continuity of care. As feasible, schools should also continue to assist survivors with identifying affordable, accessible health care in their new geographic locations to remedy any health issues caused by their experiences of violence.

As these are unprecedented times, we understand there may be times when delays of investigations and determinations of responsibility are indeed appropriate. These times should be a case-by-case factual inquiry rather than a blanket policy and should be limited to situations such as when:

  1. A school is entirely incapable of proceeding with the original case timeline because of limited institutional resources;
  2. Either party has a disability that jeopardizes the fairness or accessibility of video conferencing;
  3. Either party has limited access to internet or technological resources that the school cannot remedy; or
  4. Either party is ill or contending with an active personal or family emergency.

If a school determines it must delay a particular proceeding, it should communicate a new investigation or hearing timeline –– which should be as timely as practicable –– to both the complainant and respondent in writing. In these determinations and communications, schools should consider and explain the possible consequences of such delays, including the prospect that either party might graduate before the matter is concluded.

We are concerned to see that some schools, at the request of respondents and their advocates, have delayed sexual misconduct cases indefinitely or unnecessarily. Schools, especially in this moment, need to remember that they have important legal obligations to complainants. It is imperative that schools move forward, whenever possible, with students’ sexual misconduct cases. Where they are unable to proceed as usual, schools owe complainants and respondents clear notice, a legitimate justification, a new proposed timeline, and a thorough explanation of the possible impacts such delays may have on a given case.

We sympathize with the hardships schools face in these uncertain times, but an institutional commitment to students’ civil rights must not buckle in the face of these challenges. If you have further questions or concerns, please email Know Your IX Manager, Sage Carson, at sage@knowyourix.org.

Signed,
Know Your IX
American Association of University Women
Equal Rights Advocates
National Women’s Law Center
Public Justice
URGE: Unite for Reproductive and Gender Equity