Attorneys general from across the country are asking the U.S. District Court, District of Columbia to vacate the U.S. Education Department’s new Title IX rule — or at least postpone its effective date.
On June 4, 2020, Democratic attorneys general from 17 states and the District of Columbia sued Education Secretary Betsy DeVos to challenge ED’s new Title IX regulation. In their complaint, the attorneys general allege that the new rule strips away longstanding protections against sexual harassment for students attending K-12 schools and postsecondary institutions.
Title IX is a federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities that receive federal funding. The new rule has implications for students with disabilities, who can seek monetary damages under Title IX against districts that allegedly fail to respond to complaints of sexual harassment. Some courts have held that Title IX cases do not require exhaustion of administrative remedies under the Individuals with Disabilities Education Act.
The lawsuit filed on June 4 claims that the new Title IX rule unlawfully narrows the definition of “sexual harassment” under Title IX. Among other concerns, the attorneys general took issue with a new provision stating that sexual harassment must be “severe, pervasive, and objectively offensive” to create a hostile environment. Under this new definition, the attorneys general argue, students must endure repeated and escalating levels of harassment before the school is required to act.
They also emphasized that the new definition of a hostile environment disregards the needs of young children and students with disabilities who may be unable to verbalize social-emotional and other safety concerns. “The impact of such trauma on a student’s ability to learn, and thus on access to education, may not be evidenced until much later, especially for students who may be nonverbal or have other difficulties expressing its impact,” the attorneys general said in the complaint.
The lawsuit also criticizes the new rule’s August 14 effective date as impractical. The complaint states that it is not enough time for schools to completely overhaul their systems for investigating and adjudicating complaints of sexual harassment, especially amid the ongoing COVID-19 pandemic that has depleted school resources and caused nationwide school closures.
The 17 states joining the lawsuit in addition to the District of Columbia are Maryland, Pennsylvania, Massachusetts, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Minnesota, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, and Washington.
How the new Title IX regulation may impact K-12 schools
Importantly, the attorneys general argue in the lawsuit that the new Title IX regulations fail to consider the unique challenges that may arise in the K-12 environment.
According to the complaint, a provision in the new Title IX rule prohibits schools from restricting the parties involved in a sexual harassment investigation from discussing the allegations of harassment. This provision allegedly precludes K-12 school officials from preventing young students from sharing sensitive information with their peers. Another provision requires the school to provide all evidence collected during the Title IX investigation to both parties and their third-party advisors.
The complaint suggests that these provisions may result in student privacy violations under the Family Educational Rights and Privacy Act, which generally requires schools to obtain prior written parental consent before disclosing education records to third parties.
The attorneys general also state in their complaint that the new Title IX rule usurps the ability of K-12 schools to address alleged sexual harassment through “constitutionally sound forms of discipline,” such as detention or a one- or two-day suspension, the complaint alleges. The lawsuit does not address how the new Title IX rule may impact schools’ disciplinary procedures for students with disabilities under the IDEA or Section 504 of the Rehabilitation Act.
Concerns from lawmakers
The concerns raised by attorneys general in the lawsuit echo those in a letter issued by several Democratic senators to DeVos on June 3. In that letter, U.S. Senator Patty Murray (D-WA), ranking member of the Senate Health, Education, Labor, and Pensions Committee, and 36 other senators stressed that DeVos’ final Title IX rule will weaken protections for student survivors of sexual harassment and assault. They also highlighted that it was inappropriate to ask schools to implement this new rule within 100 days amid the COVID-19 crisis and urged DeVos to rescind the rule and focus on school safety — whether the threat is sexual assault and harassment or COVID-19.
Amy K. Onaga, Esq., covers special education legal issues for LRP Publications.
