Days after the announcement of the new Title IX Regulations, the American Civil Liberties Union (ACLU) filed its lawsuit on behalf of plaintiffs “Know Your Title IX,” the “Council of Parent Attorneys and Advocates,” “Girls for Gender Equity,” and “Stop Sexual Assault in Schools,” all advocacy organizations for alleged victims of sexual harassment and sexual assault in schools receiving federal funding.
The suit alleges that defendants Betsy DeVos in her official capacity as Secretary of Education, Kenneth Marcus in his official capacity as Assistant Secretary of Education, and the U.S. Department of Education itself reduced the responsibility of schools to respond to complaints of sexual harassment and sexual assault in their institutions. The new regulations had not even been officially published in the Federal Register.
The 38-page Notice of Proposed Rulemaking had been announced on November 29, 2018, and opened for public comment until February 15, 2019.
Contrary to former guidance published as “Dear Colleague Letters” by the Office of Civil Rights (OCR), which administratively enforces Title IX, the new regulations would have the force of law. The new regulations were designed to bring OCR guidance in line with the seminal Supreme Court decisions on adjudicating violations of Title IX in private lawsuits.
OCR received 124,196 public comments in response to the Notice of Proposed Rulemaking, and their task was to categorize and respond to all comments, explaining their rationales for adoption or not.
All schools which receive federal funding are bound by law to implement these regulations by August 14, 2020, or risk losing Title IX funding.
The result was a 2,038 page binding document announced on May 6, 2020, and published in the official Federal Register on May 19, 2020. All schools which receive federal funding are bound by law to implement these regulations by August 14, 2020, or risk losing Title IX funding. The ACLU lawsuit seeks an injunction to prevent the enforcement of these new regulations, which they say DOE prioritized over helping students continue their educations during the COVID-19 pandemic.
ACLU alleges that the new regulations, or the New Rule, established different obligations for schools, especially colleges and universities, in responding to allegations of sexual harassment and assault than for responding to other civil rights violations, e.g., on the basis of race, national origin, or disability.
These new rules, ACLU contends, will make it easier for colleges and universities to ignore allegations of sexual harassment and assault. The new rules to which ACLU specifically objects start with the definition of sexual harassment to which an institution must respond.
Sexual harassment is now defined as:
(1) what is generally known as “quid pro quo,” i.e., when an employee of the institution conditions the provision of an aid, benefit, or service for the student’s participation in unwelcome sexual conduct,;
(2) unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the institution’s education program or activity; or
(3) sexual assault defined as dating violence, domestic violence, or stalking, those last requirement aligning Title IX with the Clery Act and the 2013 Reauthorization of the Violence Against Women Act.
ACLU criticizes the New Rule’s limits on the institution’s obligations to respond only to sexual harassment performed within in an “education program or activity.” Specifically, a college or university has no duty to respond to sexual misconduct during off-campus student parties or within all of Clery geography.
Also, “persons” under Title IX must have been located in the United States when the prohibited conduct occurred. Therefore, Title IX no longer applies in institutional programs abroad. ACLU notes data from DOE itself that 41% of all college sexual assaults occur off campus.
ACLU also charges that fewer reports of sexual harassment will be investigated because of new notification regulations. Either the Title IX Coordinator or an official who has the authority to institute corrective measures on behalf of the institution must receive actual knowledge of the sexual harassment, not the constructive knowledge of “knows or should know” standard of previous guidance. Furthermore, where response is required, ACLU charges, the institution must simply respond in a manner that is not deliberately indifferent. A response is deliberately indifferent only if it is clearly unreasonable.
ACLU reserves particular umbrage for DOE’s own admission that these new standards will reduce investigations of sexual harassment and sexual assault by 32%, failing to respond to concerns that sexual misconduct is already underreported. Interestingly, the ACLU lawsuit did not criticize the mandate for live hearings in college and university disciplinary adjudications for Title IX violations. Many members of the public had criticized live hearings as possibly re-traumatizing alleged victims.
So What Does This Mean for Your College or University?
Many colleges and universities are now scrambling to organize committees to revise Title IX policies to comply with the provisions of the New Rule, including provisions for training faculty and staff in the requirements of the new regulations, while not even knowing whether their campuses will be open for face-to-face teaching in August or September. Whether DOE will itself be ready to monitor compliance by August 14, 2020 is also a relevant question.
Other litigation challenging the New Rule undoubtedly will be forthcoming in the coming months. However, now may be the time for colleges and universities to consult legal counsel who are experts in “the new normal” of Title IX. No college or university would want to be the “test case.”
If you have any questions, please consult with your legal counsel or one of the higher education attorneys at KingSpry.
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.