Eighteen attorneys general filed a lawsuit against U.S. Secretary of Education Betsy DeVos and the U.S. Department of Education Thursday in an effort to block the department’s final rule under Title IX of the Education Amendments of 1972 from taking effect Aug. 14.
The lawsuit comes on the heels of another suit filed by the American Civil Liberties Union. Both challenge the department’s regulations released May 6 that change how institutions receiving federal funding must respond to sexual assault and harassment on campus.
The lawsuit states that if permitted to take effect, the new regulations will “reverse decades of effort to end the corrosive effects of sexual harassment on equal access to education” and will require institutions to “completely overhaul” their current systems for addressing sexual misconduct in less than three months amid the coronavirus pandemic. Attorneys general from California, Colorado, Delaware, the District of Columbia, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin have joined in on the lawsuit filed in U.S. District Court for the District of Columbia.
The attorneys general claim that several aspects of the new regulations, such as limiting Title IX to apply to sexual misconduct that occurs only within an “education program or activity” and requiring complainants to be attempting to enroll or be enrolled in a college’s program to pursue a report, are arbitrary and capricious.
“According to the federal government’s own data, sexual harassment against students remains pervasive and mostly unreported,” the lawsuit states. “With the Department’s final Rule, sexual harassment will not become less common -- but it will, as the Department acknowledges in the Rule, become even less regularly reported and remedied.”
In a tweet, Attorney General Gurbir Grewal of New Jersey said the attorneys general “won’t stand by as the federal government undermines the civil rights of our students.”
“School discipline should be fair and equitable regardless of the subject matter,” Grewal said. “Unfortunately, [the department] has singled out sexual harassment cases and made it harder to find the truth and do justice in those cases alone.”
Andrew Miltenberg, a prominent attorney who has defended hundreds of students accused of sexual misconduct in court, said in a statement that it’s unfortunate that the attorneys general are attempting to block the implementation of the new regulations, “and the ability for all students to have due process rights in Title IX hearings.”
“While not perfect, the new proposed federal guidelines go a long way to ensure a full and objective investigative process and a fair, impartial hearing process in which the accused has a full opportunity to be heard and to question his or her accuser, the evidence and statements by witnesses, as well as an objective, independent appeals process,” Miltenberg said.