SAN FRANCISCO (CN) — A federal judge on Thursday responded skeptically to claims that a Trump-era Title IX rule deprives students of the right to seek federal investigations into how schools handle sexual assault and harassment complaints.
“You can file and you can ask,” U.S. District Judge Edward Chen said. “That procedure is still there. It’s whether the department decides to investigate.”
The rules put in place by former Education Secretary Betsy DeVos in May 2020 narrowed the definition of sexual harassment under Title IX and raised the bar on what would trigger an investigation by the U.S. Department of Education into schools’ handling of sexual assault and harassment claims.
Passed in 1972, Title IX prohibits sex-based discrimination in any school, college or educational program that receives federal funding. Compliance with the law is policed by the Education Department’s Office for Civil Rights.
The Women’s Student Union — a group of public school students from Berkeley, California — sued the Education Department this past March. The group says the new rule permits harassment by not mandating that schools 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.
Chen dismissed the lawsuit with leave to amend in 2021, finding it lacked critical details on purported Title IX violations in Berkeley Public Schools. In its amended complaint, the group shifted gears to advance a different theory — that the rule change deprives the organization and its members of their procedural rights to seek federal investigations into claims of mishandled complaints.
“It has deprived the plaintiffs of certain procedural protections that would otherwise be available to them,” the union’s attorney, John Lewis of Democracy Forward Foundation, argued in a virtual court hearing Thursday.
U.S. Justice Department lawyer Benjamin Takemoto urged Chen to reject that theory. Accepting the union’s argument, he said, would mean any change to legal interpretations by a government agency could give rise to a procedural injury and open the floodgates to litigation.
“Here plaintiffs are facially challenging the substance of this rule,” Takemoto said. “They’re not challenging any of the procedures that are used to adjudicate that substance.”
Lewis asked the court to recognize the rule’s impact on students' rights to utilize a process designed to help ensure schools comply with the law.
“It gives students a bargaining chip when they’re trying to make the school more responsive,” Lewis said. “The deprivation of that procedural right makes a big difference, especially for a school club that’s had difficulties in making their school more compliant.”
Chen asked if the rule actually prevents the Education Department from investigating claims that fall outside the narrower definition of sexual harassment or for conduct that occurs off school grounds.
“If you still have discretion to have an investigation done, one could argue that is a lesser impairment of the process, but if it’s an actual bar — that you cannot investigate something that does not comply with the 2020 regulations — I could see the argument that that’s more impactful,” Chen said.
The Education Department disputes claims the 2020 rule bans investigations into complaints of off-campus conduct that can affect a student’s learning environment.
“I’m not familiar with any language prohibiting the department from investigating,” Takemoto said.
On Wednesday, the U.S. Education Department sent letters informing the Berkeley Unified School District and students who filed a complaint against it that it's opening an investigation into the nearly-year-old complaint based on Title IX rules that were in place prior to May 2020.
In a court filing Thursday, the union said that announcement doesn't undermine its standing to sue because the letter fails to adequately define the scope of the investigation and indicates it will not cover alleged harassment that took place off campus.
“WSU welcomes [the Education Department’s Office for Civil Rights’] belated announcement of its intent to investigate,” the union wrote in its filing. “But the resultant investigation will not, and cannot, fully redress WSU’s injuries, and so yesterday’s development does not defeat WSU’s standing in this case.”
Also on Thursday, attorneys for the state of Texas and a student free speech rights group asked to intervene in the case, claiming they should be allowed to defend the regulations because the Biden administration “expressed open hostility” to the 2020 rule in a campaign statement referring to the regulations as “a green light to ignore sexual violence.”
Chen said he doesn't think campaign statements provide adequate evidence of an unwillingness to defend the rule.
“The department is acting under scrutiny because Texas and others are trying to intervene,” Kathleen Hunker of the Texas Attorney General’s Office argued.
Hunker predicted the administration will stop defending the rule and use a settlement to evade public notice-and-comment requirements for replacing regulations if Texas is denied the right to intervene.
“That might be the point when intervention becomes proper,” Chen said. “At this juncture it seems premature.”
Chen took the arguments under submission.
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