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Seventeen States, D.C. Sue DeVos Over Rule on Sexual Assault, Harassment in Schools

Seventeen states and the District of Columbia sued U.S. Secretary of Education Betsy DeVos and the U.S. Department of Education Thursday, challenging new rules that govern how K-12 schools, colleges, and universities must respond to student complaints of sexual assault and harassment under Title IX, a federal law that prohibits sex discrimination in education.

The rule, which DeVos announced May 6 after years of input and public comment, "creates arbitrary and unlawful procedural requirements that will chill reporting of sexual harassment and make it harder for schools to reach fair outcomes," says the lawsuit, which was filed in the U.S. District Court in Washington, D.C.

Adjusting procedures and training to comply with the new rule will also be very difficult for schools as they contend with a public health and economic crisis, the suit says.

"Under normal circumstances, requiring schools to overhaul their policies and procedures, re-negotiate collective bargaining agreements, and implement the Rule's hiring, training, and other requirements in less than three months would impose an extraordinarily difficult burden," the plaintiffs say. "Given the ongoing uncertainty caused by the COVID-19 pandemic and the strain it has placed on education institutions, Defendants' decision to require compliance with the Rule by August 14, 2020, is inexplicable."

Plaintiffs in the suit are California, Colorado, Delaware, District of Columbia, Illiniois, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.

The new Title IX rule 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."

By narrowing the definition, and using a higher bar than is used in the enforcement of other civil rights laws, the rule "impermissibly weaken[s] the administrative enforcement scheme contemplated by Congress in enacting Title IX," the state's suit says.

"The Department's definition requires students to endure repeated and escalating levels of harassment to the point of risking school avoidance; detrimental mental health effects, such as increased risk of self-harm and depression; declines in attendance; withdrawal; and even dropout before the Rule permits schools to stop the discrimination under Title IX," the suit says.

The new standards will result in a "chilling effect" that stifles student reporting, the states argue, noting that the Education Department's own analysis anticipates fewer investigations under the new directive.

 The ACLU filed a similar lawsuit on behalf of survivors' rights organizations May 14.

The Title IX 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. 

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