DeVos Fights Claims of Bias in Campus Sex-Assault Rule

SAN FRANCISCO (CN) – The Trump administration on Thursday urged a federal judge to reject claims that gender bias drove Education Secretary Betsy DeVos’ decision to rewrite an Obama-era directive on campus sexual assault.

“It’s not reasonable to suggest that groups that advocate for accused students are biased against survivors or against women,” Justice Department lawyer Steven Myers argued in court.

Myers was responding to claims that the Department of Education gave preferential access to accused students’ rights groups before it decided to revamp its sexual misconduct guidelines.

Three victims’ rights groups, led by SurvJustice, sued DeVos over the new policy in January 2018. The groups claim the policy “disproportionately burdens women and girls” and was motivated by sexist stereotypes that women frequently lie about sexual assault and harassment.

In September 2017, Devos announced she was rescinding two Obama-era sexual assault policies because they “lacked basic elements of due process and failed to ensure fundamental fairness.”

She unveiled a proposed new Title IX rule this past November that would “apply basic due process protections for students, including a presumption of innocence.” Title IX guarantees equal access to education for all and requires schools to combat sexual misconduct.

In court Thursday, U.S. Magistrate Judge Jacqueline Scott Corley appeared open to arguments that advancing the claims of gender bias could make it harder for government agencies to hold pre-decisional meetings with stakeholders in the future.

By accepting the theory, Myers argued a government agency would become marred by the views of any group with which it meets before making an important policy decision.

“That does seem problematic,” Corley acknowledged.

Representing the plaintiff groups, lawyer Robin Thurston countered that the Education Department didn’t just meet with the “men’s rights groups” but coordinated with them to write opinion pieces supporting the department’s new policy. In contrast, the department only met with survivors’ rights groups after repeated requests, and it excluded one group for publishing a critical op-ed, according to the lawsuit.

“It’s not a marketplace of ideas to suggest that this group put out op-eds supporting the policy,” Thurston said. “That’s more than just soliciting information from everyone.”

Thurston further argued that statements made by DeVos and Candice Jackson, assistant secretary for civil rights at the Education Department, show clear prejudice against women that report sexual misconduct.

The victims’ rights lawyer cited a July 2017 New York Times article in which Jackson is quoted as saying “the accusations – 90 percent of them – fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.'”

Thurston insisted that this and other statements by Education Department officials show the policy change was “at least in part based on the stereotype that women tend to make false accusations.”

The Justice Department also argues the suit should be dismissed because victims’ rights groups lack standing to sue on behalf of their clients. Thurston said the groups should be allowed to sue on behalf of women who could face retaliation, re-traumatization, and loss of privacy and safety if they file public lawsuits against their schools’ Title IX policies.

Additionally, the government argued that because Corley previously held DeVos’ September 2017 directive “creates no legal consequences,” the plaintiffs cannot claim the department’s action prompted schools to change their policies.

However, the lawsuit does specify colleges in Kentucky, Michigan, and South Dakota that altered their Title IX policies as a result of the new directive.

Without hinting how she might rule, Corley took the arguments under submission. The judge previously granted the Education Department’s motion to dismiss the suit with leave to amend in October.

Last month, Corley also granted a request to file a motion for reconsideration of her prior ruling that the directive had “no legal consequences” for schools. A hearing on that motion is scheduled for April 4.

SurvJustice’s co-plaintiffs include Equal Rights Advocates and the Victim Rights Law Center.

A separate federal lawsuit challenging the Title IX policy is also pending in the U.S. District Court for the District of Massachusetts.

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