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ACLU Sues DeVos Over Title IX Rules on Sexual Assault, Harassment Investigations

The ACLU sued U.S. Secretary of Education Betsy DeVos on Thursday, seeking to block parts of her recently announced rules that govern how K-12 schools, colleges, and universities must respond to reports of sexual assault and harassment under Title IX, the federal law that prohibits sex discrimination in education.

The organization sued DeVos, Assistant Secretary for Civil Rights Kenneth Marcus, and the U.S. Department of Education in a Maryland federal court on behalf of a coalition of survivor-advocacy groups.

The long-anticipated directive, which DeVos announced May 6, says schools must respond to unwelcome treatment on the basis of sex that is "so severe, pervasive, and objectively offensive" that it infringes an an individual's education. Previously, the federal agency used a broader definition of conduct that is "severe, pervasive, or objectively offensive," the complaint says.

That unfairly gives schools less of an obligation to respond to possible Title IX violations than they have to address other forms of harassment under different federal civil rights laws, the complaint says.

"Despite issuing a 2,000 page 'preamble,' [the Education Department] never adequately explains why it is treating sexual and racial/national origin/disability harassment differently, despite similar statutory prohibitions," the suit says."This double standard will have a devastating effect on survivors of sexual harassment and assault and their educations."

The rule replaced an Obama-era civil rights directive that DeVos revoked in September 2017, when she said that rule didn't do enough to protect the due-process rights of the accused. DeVos has also criticized the Obama administration for releasing guidance documents that outlined its interpretation of civil rights laws without seeking public comment through a formal rulemaking process. 

The ACLU lawsuit challenges:

  • The rule's definition of sexual harassment;
  • The rule's limitation against investigating out-of-school and off-campus conduct;
  • Limitations on which officials college and university students can report complaints to (the rule allows elementary and secondary students to report complaints to any adult in school); 
  • A provision in the rule that allows schools to shift the threshold that officials use to decide if an assault claim requires a response, from the "preponderance of evidence" standard set under the Obama administration to a "clear and convincing evidence" standard, which is a higher bar to prove claims of misconduct.

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