Judge refuses to advance suit over DeVos’ campus sex assault rules

SAN FRANCISCO (CN) — A federal judge on Thursday refused to advance a lawsuit claiming Title IX regulations put in place by former Education Secretary Betsy DeVos last year will weaken protections for victims of school-related sexual assault and harassment.

U.S. District Judge Edward Chen, a Barrack Obama appointee, found the Women’s Student Union — a group of public school students from Berkeley, California — failed to establish standing to sue because their lawsuit lacks details on incidents of sexual assault or harassment that will allegedly go unpunished as a result of the new regulations.

Previous Title IX requirements had a lower standard to trigger investigations into misconduct, with the bar set at “unwelcome conduct of a sexual nature.” Under a new rule put in place by DeVos’ Education Department in May 2020, complaints must either involve unwelcome conduct that is “so severe, pervasive and objectively offensive” it denies a person access to educational opportunities; involve a school employee conditioning education benefits on unwelcome sexual conduct; or meet definitions of stalking, dating violence, domestic violence and sexual assault.

The Women’s Student Union claims the new rule will permit harassment by not requiring schools to investigate incidents such as exposure to others’ genitalia, circulation of sexualized images, comments about classmates’ sexual histories and off-campus assault and harassment that affect a student’s learning environment.

“We allege there were sexual assaults committed off campus, but the effects were felt on school grounds,” the union’s attorney, Seth Galanter, argued in virtual court Thursday. “Under the regulations, that’s not something the school district has to address.”

The new rule also removes deadlines for completing investigations, whereas old provisions required matters be resolved in 60 days. The union says this will result in schools failing to respond to reports of sexual assault and harassment in a prompt or timely manner.

Galanter, of the Washington D.C.-based National Center for Youth Law, told Judge Chen that the 2020 rule was intended to narrow the circumstances in which the Education Department’s Office of Civil Rights will require a school district to respond to reports of sexual assault or harassment.

“It can be as pervasive as possible. It can deny a person equal access, but if it’s not severe, it cannot be considered a violation,” Galanter said.

But Judge Chen said the union’s complaint lacked critical details such as who was sexually harassed or assaulted, if those victims were members of the union, if the incidents occurred after new rule took effect, if the school district investigated them and why the new regulations prevent the Education Department from reviewing those incidents.

“I see a number of sort of holes that need to be filled in,” Chen said. “You’ve got to show somebody whose ability to complain or actual complaint has been affected or will be affected by the 2020 regulation.”

Chen gave the union 45 days to file an amended complaint.

In September 2017, DeVos rescinded two Obama-era sexual assault policies because they “lacked basic elements of due process and failed to ensure fundamental fairness.” At the time, DeVos said the prior guidelines failed to give male students accused of sexual assault the proper presumption of innocence, which violated their due process rights.

In June, the Biden administration’s Education Department asked Judge Chen to stay the case while it reviews the 2020 Title IX rules put in place under DeVos’ leadership. The department announced on April 6 it would undergo a “comprehensive review” of the Title IX rules.

“Today's action is the first step in making sure that the Title IX regulations are effective and are fostering safe learning environments for our students while implementing fair processes,” Education Secretary Miguel Cardona said in a statement in April.

The state of Texas and four groups that support the Trump administration rule filed motions to intervene as defendants in the case. Texas argued that it should be allowed to defend the regulations because the Biden administration “is openly hostile” to the 2020 rule, based on a statement on Biden's campaign website referring to the Title IX rules as “a green light to ignore sexual violence.”

Last week, a federal judge in Massachusetts overseeing a separate lawsuit over the Title IX rules upheld them, except for one provision banning the consideration of testimony not subject to cross examination in misconduct hearings. Senior U.S. District Judge William Young, a Ronald Reagan appointee, rejected arguments that the rule discriminates against women and that DeVos’ Education Department did not fully consider the repercussions of giving more rights to those accused of sexual assault or harassment.

In August last year, another federal judge in Washington declined to block the new regulations pending the outcome of a separate lawsuit.

Follow Nicholas Iovino on Twitter.

Follow @NicholasIovino

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit