WASHINGTON (CN) — Saying the impending regulations will be costly and make it harder to discipline sexual misconduct, a group of blue states urged a federal judge on Friday to block the Trump administration’s changes to how schools must adjudicate sexual harassment and assault claims.
“In short, your honor, the states have sued because the rule makes it harder for schools to fulfill Title IX’s promise that no student on the basis of sex should be limited or denied the benefits and opportunities of an education,” Aimee Thomson, with the Pennsylvania Attorney General’s Office, said Friday.
U.S. District Judge Carl Nichols did not rule from the bench following a two-hour hearing held remotely on Friday afternoon, but said he will issue a ruling on whether to block the new regulations in “relatively due course.”
In 2018, the Trump administration announced plans to roll back a series of Obama-era guidance documents detailing how colleges adjudicate claims of sexual misconduct under Title IX. The Obama rules required schools to put in place stricter policies for addressing such claims, including putting in place a preponderance of the evidence standard of proof for determining misconduct.
The Obama rules were hailed by advocates as a key step towards curbing an epidemic of sexual assault on campus and correcting schools’ lax responses. But some experts warned the regulations did not include sufficient due process protections for the accused and many accused students won lawsuits challenging their discipline under the rules.
The Trump administration rules, which were formalized in May, were aimed at that critique of the regulations. The new rules require schools to hold a live hearing when adjudicating harassment and assault claims, allowing representatives for the victim and accuser to conduct cross-examination.
Under the Obama rules, many schools adopted streamlined adjudication processes that did not include in-person hearings, which critics say risk re-traumatizing the victim. The Trump regulation also requires the accused to have equal access to evidence. In addition, the rules narrow the definition of sexual harassment and limit who can file a complaint.
Led by Pennsylvania, a group of 17 states and the District of Columbia filed suit last month challenging the regulation as going against the core function of Title IX. On June 23, the states asked a federal judge to enjoin the rule, which is set to take effect in August.
Thomson, who argued for the states Friday, said the new regulations will require schools to stand up an entirely new process for weighing sexual misconduct claims. She said this would be an extremely costly process, requiring new hiring, the renegotiation of union contracts and outreach efforts to explain the new procedure to students and faculty.
Setting up the new procedures would be especially difficult given the Covid-19 pandemic and the financial strain many schools and universities are facing, Thomson argued.
“It involves a massive undertaking at a time when schools are really on the back foot with responding to the current national pandemic,” Thomson said. “And this is why, your honor, we are particularly concerned about the upcoming effective date, only 21 days from today, because it is requiring schools in less than three months to completely overhaul almost every aspect of their operations to be in compliance.”
Jennifer Dickey, a Justice Department attorney who argued for the Trump administration, said the new rule did give schools more time to comply than the administration would have thought necessary absent the pandemic. She said pausing the implementation of the regulations over schools’ claims that they will have a hard time complying overlooks that the administration views the change as an important correction implicating constitutional and statutory concerns.
“This is the culmination of a nearly three-year process to identify and respond to a serious issue of sexual harassment across the country,” Dickey said. “The department is well aware that schools have adopted a series of approaches to respond to sexual harassment, not all of which have fairly treated the accuser and the accused, and Title IX obligations are not suspended during a pandemic.”
Turning away from the timing issues, Thomson argued for the states that the changes will chill the reporting of harassment in schools and universities and lead to mistrust of the system. By requiring the dismissal of complaints that do not fit within its definition of sexual harassment, the Trump rule raises the bar for what is considered misconduct, cutting out conduct Title IX was meant to prohibit, the attorney said.
Nichols asked several times during the hearing whether schools could still hand down discipline based on personal conduct policies and other mechanisms that go beyond what is required under Title IX and Dickey confirmed to the Trump appointee that a school could do so.
On the merits of the rule, Dickey argued the federal government has an interest in curtailing policies it views as violating due process rights. She also said having a clear definition of what schools must do to comply with Title IX will bolster the effectiveness and legitimacy of the disciplinary actions the institutions take.
Having too burdensome a requirement might discourage institutions from taking Title IX funds, frustrating the purpose of the law, Dickey argued.
“Congress did not set schools up as sort of an alternative police force,” Dickey said. “They did not subject schools to open-ended liability, rather they set forth a reasonable condition on federal funds that recipients can respond to and apply.”
Nichols struggled, however, with whether the administration can “make the floor essentially also the ceiling” with its definition of harassment and punish schools for having stricter policies than the federal government requires.
“Does the educational institution itself, by acting inconsistent with the rule, is that a violation of Title IX in the department’s view?” Nichols asked. “And if so, where does the department get the power to prohibit a school, a university, from defining as sexual harassment something beyond what the department thinks is sexual harassment?”
Nichols said he may ask for additional briefing on that particular issue before he rules on the injunction request.