The Aug. 14 deadline for colleges and universities to implement new federal requirements for responding to reports of sexual misconduct is just one month away.
Although the regulations issued by the U.S. Department of Education completely overhaul current policies and procedures for handling sexual misconduct complaints, the significance of those changes has been largely overshadowed by the coronavirus pandemic as college leaders determine how to bring students back to campuses in the fall.
For many colleges, implementing the new policies required under Title IX of the Education Amendments of 1972, the law that prohibits sex discrimination at federally funded institutions, presented an additional challenge for administrators already focused on how to safely reopen campuses that were closed in the spring because of the public health emergency. Those administrators have spent the last few months trying to come up with reopening plans while monitoring infection rates in their individual counties and states and following health guidance protocols issued by local, state and national public health experts. The administrators had no such lead time since the new regulations were officially issued on May 6, and they say they haven't been given enough time to put them in place by the August deadline.
The American Council on Education and more than 24 other higher education associations have asked the Education Department for more time to restructure campus policies and procedures. The associations have also asked a federal court to halt the implementation of the changes. The opponents argue that the new requirements place undue financial and time burdens on colleges and universities. The changes officials must make are laid out in a lengthy 2,000-page document and require the input of legal professionals to implement due to their complexity.
“It’s as if they picked the worst possible time to require every college in America to do this as best they could,” said Peter McDonough, general counsel for ACE. “As we sit here today, campuses have no choice but to work night and day, along with all of the other things that are taking their 24-7 attention, to have these regulations analyzed and applied to revise policies and procedures. It’s a really heavy lift.”
He said ACE and other organizations are hopeful that the federal courts will put a hold on the new regulations. There are four active lawsuits and a motion by 18 attorneys general to block the regulations. If the judge in the AGs' case determines the Aug. 14 deadline will cause “immediate and irreparable harm” to institutions, it’s possible college officials will be allowed more time to craft their Title IX policies.
Supporters of the new requirements argue that students will be harmed if the new regulations are not implemented by August.
Robert Shibley, executive director of the Foundation for Individual Rights in Education, said, “Going into yet another school year without these protections in place is not acceptable.” FIRE and other civil liberties groups are planning legal action to ensure the new regulations are implemented by the deadline. FIRE plans to file a brief in the AGs' lawsuit that argues for implementation of the new regulations as a necessary measure to protect free speech on campus because the regulations redefine what actions constitute sexual harassment.
The arguments brought forward in the different court filings by opponents of the new requirements go beyond the pending deadline, however. They question the merit and legality of the new regulations altogether, and how the department went about creating them.
A Different Standard for Sex Discrimination
This is the crux of the lawsuit against the regulations filed by the American Civil Liberties Union on behalf of several advocacy organizations for survivors of sexual assault and gender equity. The lawsuit argues the new regulations in and of themselves are discriminatory and “collectively create a separate standard for sex discrimination” than the department’s standards for discrimination based on race and national origin, said Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project.
The new regulations reduce colleges’ responsibility to respond to reports of sexual harassment by requiring officials only to act on reports that occur within a college-related program. The new rules also shift the definition of sexual harassment. The new definition, commonly referred to as the “Davis standard,” is based on a 1999 Supreme Court decision and defines sexual harassment as actions that are “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.” [Italics added.]
The department had previously defined sexual harassment as conduct that is “severe, pervasive, or objectively offensive,” the ACLU lawsuit argues. Additionally, department guidance on racial harassment uses a “severe, pervasive or persistent” standard. [Italics added.]
In response to the motion by the attorneys general to block the regulations from being implemented, the U.S. Department of Justice defended the Davis standard definition of sexual harassment because it was used in a Supreme Court decision regarding Title IX. No previous formal Title IX regulations, only administrative guidance, had used the "severe, pervasive, or objectively offensive" definition, and so it had not been written into law, the Justice Department argued in its opposition to the motion filed on July 8.
"[The Department of Education] concluded that adopting the Davis standard would ensure the imposition of consistent requirements in judicial and administrative contexts," the DOJ filing said.
But Mar said these slight differences in phrasing will determine whether colleges must investigate or dismiss a complaint of verbal sexual harassment, and they will create a “double standard” for victims of such misconduct. Single incidents of sexual harassment are less likely to be scrutinized under the new standard, she said.
“Each comment standing alone might not be ‘severe,’” Mar said. “You could imagine a single instance of harassment that’s outrageous. But because it’s only happening once, it doesn’t apply … We shouldn’t have to ask that question, and why does it apply to race and national origin but not sex?”
A similar argument about the Department of Education’s new standard for sex discrimination versus race and national origin is made in the State of New York’s lawsuit against the regulations. The state, represented by Attorney General Letitia James, said the regulations create "inexplicable incongruity" between processes for sex discrimination claims and other types of disciplinary procedures.
Jake Sapp, a Title IX legal researcher for the Stetson University Center for Excellence in Higher Education Law and Policy, said the lawsuit argues that no other type of discrimination regulated by the department has as “complicated of a regulatory scheme as Title IX now has.”
“It’s discriminatory in that they’re not enforcing all their federal antidiscrimination processes equally if they’re giving more attention to Title IX,” Sapp said, referring to James’s argument.
A lawsuit against the new regulations filed in Massachusetts by the National Women's Law Center on behalf of other advocacy groups and survivors of sexual assault takes aim at what they believe are increased protections for those accused of sexual misconduct. Aspects such as a newly required live hearing and cross-examination process “tilt schools’ investigations of sex-based harassment in favor of respondents and against complainants,” the center's claim said. The department’s new option for colleges to use a “clear and convincing” standard of evidence also favors the accused, the NWLC lawsuit said.
Any witnesses involved in an investigation of sexual misconduct must also now be cross-examined by a representative of both parties involved in order for their testimony to be used as evidence. The NWLC lawsuit argues this “makes the process more intimidating and traumatizing for victims and puts in place new barriers to accurate fact-finding and adjudication of complaints.”
Mar and the NWLC further argue the regulations are discriminatory by referencing statements made by current and former members of the department that they say perpetuate rape stereotypes and the belief that survivors of sexual assault are often lying about their experiences. They contend these ideas could have partially motivated development of the new requirements, which mandate colleges increase scrutiny of sexual misconduct claims.
The ACLU lawsuit, for example, references statements made in July 2017 by Candice Jackson, former assistant secretary for civil rights, alleging that most claims of college sexual assault are the result of intoxicated students or a student regretting a consensual sexual encounter. Secretary of Education Betsy DeVos said in 2017 that “too many cases” of sexual harassment involve students or faculty members punished for “simply speaking their minds or teaching their classes” by using speech that is controversial or offensive, which Mar said the department presents no evidence for in the new regulations.
But Shibley, of FIRE, said the “misuse” of sexual harassment policies to punish speech protected by the First Amendment has been an issue for decades. FIRE, along with two other campus civil liberties organizations -- Speech First and the Independent Women’s Forum -- will file a brief in response to the AGs' lawsuit, arguing that the new regulations’ definition of sexual harassment is actually required by the First Amendment.
Shibley said using the Davis standard to define sexual harassment “will clear up a lot of ambiguity” for colleges when responding to complaints of sexual misconduct on campus and “would be a huge advance” should the courts uphold the definition against the legal challenges to it.
“Many of these provisions are actually required by the First Amendment and by principles of due process,” Shibley said of the new requirements. “It’s a necessity … We’ve seen a huge amount of speech be silenced in the name of preventing sexual violence.”
Mar said the ACLU, which has traditionally been a strong proponent of the First Amendment, supports the “fair processes” laid out in the regulations, such as a live hearing and cross-examination. The ACLU “vigorously” supports free speech but disagrees that the Davis standard is required by the First Amendment, Mar said. She believes FIRE is writing off the second part of the 1997 definition of sexual harassment, which requires conduct to deny students an equal access to education in order for officials to initiate a Title IX investigation.
“The ACLU is committed to ending sexual assault on campus and to providing a fair process for complainants and respondents,” Mar said. “We dispute the fact that you can only have one or the other.”
Overstepping of Authority by Ed Dept
The other category of arguments made in the four lawsuits is less “substantive” and more “procedural,” Sapp said. The basis for most of these arguments is found in the Administrative Procedure Act, the 1946 law that created requirements for how federal agencies develop and issue regulations, which includes reasons why a judge may be able to “set aside” rules issued by an agency, he said.
All of the lawsuits challenge the new regulations using the “arbitrary and capricious” standard, which essentially requires Department of Education officials to justify why changes to colleges’ Title IX policies and procedures are necessary, Sapp said. Under this standard, the department also has to explain why its new regulations are better than what was previously enforced under Title IX, he said. The AGs' lawsuit lists dozens of reasons that the states believe the department is overstepping its authority.
Sapp said an important factor of the AG and New York State lawsuits is the involvement of the top lawyers in these states, because their institutions, including K-12 schools, now have to allocate resources to implement the new Title IX requirements. The attorneys general have both “strong procedural and substantive arguments” and Sapp believes a judge will see merit in their case, he said.
“I think that the lawsuit that carries the most weight right now is the AG case, mainly because nearly half the lawyers for the states are on it,” Sapp said. “They’re not an advocacy group. They’re representatives on the state level, and states have traditionally been charged with overseeing education in their state.”
Another strong procedural argument made in several of the lawsuits is how some aspects of the regulations changed between November 2018, when the regulations were proposed and went into a public comment period, and May 2020, when they were finalized, Sapp said. Some provisions, such as the requirement for colleges to publish all training materials for Title IX officials on their websites, were not in the proposed rule and did not have an appropriate amount of public notice or comment, the lawsuits say.
No matter how strong of a case any of the lawsuits make, Sapp, who is deputy Title IX coordinator at Austin College in Sherman, Tex., said it would be “absolutely negligent” for college officials to bank on a judge deciding to set aside the new regulations. All colleges and universities should have new policies and training in place by August, despite the difficulties of revamping Title IX policies during the pandemic, he said.
“These cases are going to take a very long time because of how much there is to cover -- thousands of pages that cite hundreds of cases and academic and legal studies,” Sapp said. “You absolutely have to be preparing for Aug. 14. That’s No. 1.”