Fight Over DeVos Campus-Assault Rule Change Struggles to Gain Traction

(CN) – A challenge to Education Secretary Betsy DeVos’ revisions to Obama-era guidance on campus sexual assault is struggling to advance, after a federal judge ruled Friday the groups suing haven’t shown their clients are unable to file their own lawsuits.

U.S. Magistrate Judge Jacqueline Corley said that while plaintiffs SurvJustice and two other victims’ rights groups have demonstrated organizational injury and a close relationship with their clients, the third required prong is missing.

“Defendants argue that plaintiffs’ asserted hindrances are insufficient to invoke third-party standing because it is possible for the third party to raise the equal protection claim themselves, and there is evidence that third parties in fact have raised such claims,” Corley wrote in a 17-page decision. “The court agrees.”

SurvJustice sued on behalf of sexual assault victims to protect them from retaliation, the potential loss of privacy and safety, and the possibility that they would be traumatized again.

Although U.S. law allows third parties to sue on behalf of others, they must prove the aggrieved parties are sufficiently hindered from bringing the lawsuit themselves.

The government argued that many sexual assault victims had filed their own lawsuits, proving that nothing hindered them from doing so.

Corley agreed.

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.”

At the time, DeVos said the Obama-era policies failed to give male students accused of sexual assault the proper presumption of innocence, which violated their due process rights.

In January 2018, three victims’ rights groups, led by SurvJustice, filed suit in federal court over claims the DeVos policy disproportionately burdened females and was motivated by sexist stereotypes that women frequently lie about sexual assault and harassment.

The groups also accused DeVos and her employees of bad faith, saying they met with advocates for men while crafting the policy while giving short shrift to victims and their advocates.

In addition to allowing the plaintiffs to amend their claims to show third-party standing, Corley also granted a motion of reconsideration regarding her dismissal of claims under the Administrative Procedure Act. While Corley had found DeVos’ 2017 guidance was not final – a requirement of the act – she reversed course Friday and ruled new precedent from the Ninth Circuit clarified what constitutes a final agency action.

Corley ordered the plaintiffs to file an amended complaint “to include additional factual allegations regarding the finality of the 2017 guidance” by April 29.

In an email, National Center for Youth Law senior director Seth Galanter said the groups look forward to advancing their case.

“Upon reconsideration of an earlier decision, the court has now ordered the parties to begin planning for how the case will move forward. We are eager to prove the merits of our claims that the department’s guidance is unlawful under the Administrative Procedure Act,” Galanter said.

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