ERA Sues U.S. Dept of Education, Betsy DeVos over New School Sexual Assault, Harassment Rules

June 10. 2020

For Immediate Release
Jun 10, 2020

Media Contact
Nazirah Ahmad
[email protected]

UPDATE: Five ERA student survivor clients have joined our lawsuit as individuals. Read their stories here, and what they have to say about DeVos’s new Title IX rules.

(Washington, D.C.) Today June 9, 2020, Equal Rights Advocates sued Betsy DeVos and the Trump Administration’s Department of Education for a second time, challenging new Title IX rules announced last month that reduce schools’ obligation to respond to sex-based harassment and assault and turn school Title IX investigations into mini-trials stacked against survivors.

Represented by the National Women’s Law Center (NWLC), along with co-counsel Morrison & Foerster LLP and Diane Rosenfeld of Harvard Law School in her individual capacity, the Equal Rights Advocates is a plaintiff in the suit alongside three other organizations: Victim Rights Law Center, Legal Voice, and Chicago Alliance Against Sexual Exploitation (CAASE). 

The appalling timing and substance of these rules reflect a desire to exploit a national crisis by attacking the rights of students who are most at risk of experiencing sexual violence: women and girls of color, LGBTQI students, and students with disabilities. — Brenda Adams, Senior Counsel for Education Equity & Litigation

The Trump Administration’s new Title IX rules, released May 19 with a deadline of schools to implement by August, would egregiously harm K-12 and college students nationwide who seek to learn in safe school environments. The lawsuit claims the new rules are illegal because they violate the Administrative Procedure Act and the U.S. Constitution’s Equal Protection Clause by:

• prohibiting schools from addressing any sexual harassment before it becomes so severe that it affects a victim’s ability to succeed in school;
• prohibiting schools from investigating sexual assault and sexual harassment occurring outside a school program or activity, even when it has created a hostile educational environment, or when the complainant (survivor) transferred, graduated or left school because of the assault/harassment;
• establishing an inappropriate and unfair process that harms survivors, most often women and girls, and that applies only in sexual assault and sexual harassment investigations and not other investigations of student or faculty misconduct, such as requiring schools to presume the alleged assailant or harasser is not responsible, and requiring live hearings for colleges with direct cross-examination.

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This lawsuit is part of a large national effort by survivor advocates, nonprofit organizations, government officials, and government entities to stop the rules from going into effect and proving their illegality. Since the rule was released on May 19, multiple other suits have been filed including by attorneys general from New York, and a multi-state suit representing 17 states and the District of Columbia. An additional suit was filed by the ACLU on behalf of Know Your IX, the Council of Parent Attorneys and Advocates, Girls for Gender Equity, and Stop Sexual Assault in Schools.

The following is a statement from Brenda Adams, Senior Counsel for Education Equity & Litigation at Equal Rights Advocates:

“The appalling timing and substance of these rules reflect a desire to exploit a national crisis by attacking the rights of students who are most at risk of experiencing sexual violence: women and girls of color, LGBTQI students, and students with disabilities. The Department of Education has made it clear that its primary goal is to save money, not to help students. Rather than addressing the problem of rampant sexual violence in our schools, Sec. DeVos instead chose to ‘solve’ the problem by restricting the number of complaints that can be filed and investigated. What’s more, her financial goal cannot be achieved, because implementing these rules in such a short timeframe, in the midst of multiple national crises, will cost schools an inordinate amount of money. And for what? So schools can protect even fewer of their students from sexual harm.”

The following is a statement by Fatima Goss Graves, president and CEO of NWLC:

“The department’s decision to reverse decades of guidance and target survivors of sexual harassment is illegal. Sexual violence is already dramatically underreported in schools, and this is yet another attempt to deliberately silence survivors based on the sexist myth that they are liars. At a time when students are also feeling the impact of the health pandemic and police violence on their education, when will Betsy DeVos choose to support them instead of encouraging schools to turn against them? By tying the hands of schools so they may not effectively address sexual assault and other forms of harassment, too many students will be left with no recourse other than a deeply flawed criminal justice system for accountability. We won’t stop fighting until all students feel safe at school, and are treated with respect.”

The following is a statement by Megan Rosenfeld, Public Policy and Advocacy Director of CAASE: 

“The new Title IX rule will make it easier for schools to ignore sexual harm—which disproportionately impacts marginalized students—and allow discrimination in schools. It will have the opposite effect of Title IX’s intention by making it harder for survivors to report sexual misconduct to their school, lowering schools responsibility to act when sexual misconduct occurs and giving them a pass to cover it up, and creating an unbalanced process that favors respondents over student survivors’ rights to education and safe campuses.”

The following is a statement by Legal Voice attorney Catherine West:

“By making it more difficult for student survivors to report sexual violence and reducing schools’ liability, the new rules favor perpetrators,” said Legal Voice’s Catherine West. “Those most marginalized will be hurt the most, including transgender students, who are at a higher risk of sexual violence than all students, Native American women, who are at the greatest risk of sexual violence, and Black women, who have been silenced about sexual violence because of historical oppression and racist stereotypes.”

The following is a statement from Stacy Malone, Executive Director of VRLC:

“Secretary DeVos and the Department of Education are using a global pandemic to camouflage the release of the final Title IX regulations to ensure every step of the reporting and adjudication process presents barriers for victims of sexual assault,” said Stacy Malone, Executive Director of the Victim Rights Law Center. “What we know for sure is that Secretary DeVos’s new rules will lead to a decrease in campus sexual assault reports. Victims will have little to gain by coming forward, especially students who are at the greatest risk for sexual violence – Black women, Native Women and LGTBQI survivors. Once again the Department of Education attempts to silence victims and the VRLC responds with a lawsuit to fight for the rights of student survivors.”