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Betsy DeVos and Education Department Face Lawsuit Over New Campus Sexual Assault Rule

Several sexual assault victim advocacy groups on Thursday filed a federal lawsuit claiming that the Education Department’s (ED) revised federal guidelines for how sexual assault allegations and complaints should be handled on K-12 and university campuses would “dramatically undermine students’ civil rights.”

The lawsuit, filed on behalf of the advocacy groups by the American Civil Liberties Union (ACLU) and New York-based law firm Stroock & Stroock & Lavan LLP in the U.S. District Court for the District of Maryland, names the ED, Secretary of Education Betsy DeVos, and the department’s Assistant Secretary for Civil Rights Kenneth Marcus as defendants.

According to the complaint, the new guidelines diminish the effectiveness of Title IX of the Education Amendments of 1972 by failing to impose same responsibilities on institutions to respond to harassment based on sex that it imposes on them to respond to harassment based on race, national origin, and disability.

“With the promulgation of the Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance regulation (the “Rule”), however, the Agency has radically reduced the responsibility of schools to respond to complaints of sexual harassment and assault, creating an arbitrary and wholly unexplained disparity between its treatment of sex discrimination on the one hand, and race, national origin, and disability discrimination on the other,” attorneys for the ACLU wrote in the complaint.

“This new federal effort to weaken Title IX makes it more difficult for victims of sexual harassment or sexual assault to continue their educations and needlessly comes amid a global pandemic—wherein tens of millions of students across the United States are already struggling to learn despite the closure of schools, a shift to online learning, and numerous other disruptions caused by COVID-19. Instead of focusing on how to help these students, the Agency has prioritized gutting protections against sexual harassment and assault that many of them currently rely on.”

Supporters of DeVos’s new guidelines say they are meant to correct the Obama administration’s rules which failed to protect those accused of sexual misconduct from violations of due process. The revised guidelines require the accused be provided with the opportunity to defend themselves in a live-hearing with cross-examination at postsecondary institutions, while making hearings optional for elementary and secondary schools, so long as they are permitted to submit written questions for the other parties and witnesses to answer before reaching a determination regarding responsibility.

“If allowed to be implemented at educational institutions nationwide, these provisions will make the promise of equal educational opportunities irrespective of sex even more elusive. This is true for all students, including students of color, LGBTQ students, and students with and without disabilities, in grade school, high school, and higher education,” the filing said.

The suit seeks to block the new provisions from taking effect on Aug. 14.

Angela Morabito, a spokeswoman for the Education Department, told NBC News on Friday that the new rule codifies measures to ensure that “no survivor is brushed aside and no accused student’s guilt is predetermined.”

“The ACLU, which used to defend civil liberties, should be supporting such an approach,” Morabito said. “Instead, they’re helping schools trample on basic due process and gut protections for survivors to serve an ideological agenda where the ends justify the means.”

ACLU DeVos Lawsuit by Law&Crime on Scribd

[image via Drew Angerer/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.