Title IX advocates sue federal government

It looks like a coalition of advocates for Title IX may get to take the Trump Administration to court. (Video: Lawyers and a student survivor of sexual assault explain their case at a press conference.)

Attorney Robin Thurston of Democracy Forward thinks the judge will let the case go forward, she said after the hearing. (Photos by Sherry Boschert)

A federal magistrate judge at a hearing in San Francisco seemed inclined to let a lawsuit proceed against the U.S. Department of Education’s Title IX policy but she asked lawyers for both sides to submit more arguments before she decides. The government had moved to dismiss the suit and plaintiffs opposed that motion, which the judge will decide.

Magistrate Judge Jacqueline Scott Corley vigorously questioned attorneys for both the plaintiffs and the government. Afterward, a California university student tearfully described at a press conference how the current federal policies helped make her life hell after she reported that another student raped her. (See video.) Lawyers for the three plaintiff organizations — Equal Rights Advocates, SurvJustice, and Victim Rights Law Center — are hoping the courts will invalidate Education Secretary Betsy DeVos’s 2017 changes to Title IX policy as unconstitutional and discriminatory. This could reinstate 2014 and 2011 policies promulgated under the Obama Administration.

The changes made by DeVos include:

• Scrapping a requirement that schools conduct “prompt” investigations of sexual violence complaints;
• Allowing schools to deny students who complain of sexual violence the right to appeal the school’s decision while giving only the accused students the right to appeal;
• Letting schools use mediation to resolve claims of sexual violence, a process that can be harsh for sexual assault survivors and may avoid accountability for perpetrators;
• Allowing schools not to offer “interim measures” that may be needed for survivors to stay in school while an investigation runs its course (like changing class schedules or issuing no-contact orders) unless they offer them to both the accuser and the accused, and
• Placing arbitrary limits on how many complaints will be accepted from any one person or organization.

Signs at the press conference included #MeToo and #StopBetsy.

The geeky (for a non-lawyer like me) hearing featured two women arguing for the lawsuit and two men from the Department of Justice saying it’s ridiculous. The judge’s lively shredding of arguments kept both attorney Robin Thurston of Democracy Forward for the plaintiffs and Department of Justice attorney Steven Myers on their feet.

I could almost see a cartoon light bulb go on over the judge’s head, though, when Thurston argued that DeVos’s policy traps complainants into a no-win situation. Here’s how it went down: The government lawyer argued that schools don’t have to follow the Department of Education’s 2017 Title IX “guidance” because it’s just a suggestion — schools can follow it or not. If students feel the school’s actions violate Title IX, they can sue the school. Well, says the judge to Thurston in a recurring phrase today, “What about that?” Here’s the thing, Thurston explained. Laws say a student would have to show that the school was being “deliberately indifferent” in violating her rights. All the school would have to do is say that it’s following the government’s guidance and — poof — there goes any claim of deliberate indifference.

The judge gave plaintiffs until Aug. 2 to submit supplemental arguments on that line of thinking and gave the government until Aug. 30 to respond. If she decides the case can move forward, the Title IX advocates potentially could depose government officials to determine whether their policies were motivated by a biased view that girls and women are likely to lie about sexual assault.

That could produce some interesting interviews, given the President’s many misogynist statements, former Office for Civil Rights Director Candace Jackson’s remark that 90% of reported rapes are just female regrets about drunken hook-ups (for which Jackson later apologized), and DeVos’s own claim of ignorance about whether false accusations of rape are as common as real rape complaints (even though widely-accepted data clearly show that false accusations are extremely rare).

While the legal battle continues, the plaintiff groups say, the DeVos policy is scaring off students, making them less likely to report sexual assaults and potentially leaving rapists on campus to strike again. The student who spoke backed up this contention. She knows two other students who were raped in the year after she was raped. After seeing what she’s had to go through, both decided not even to report their rapes.

Update: On October 1, 2018 the magistrate judge ruled against the suit, which will not go forward. She said the Title IX guidelines are not binding and schools may choose to implement them or not, as long as they comply with Title IX. She rejected the women’s groups’ argument that schools accused of deliberate indifference to sexual assault survivors could escape liability simply by saying they followed the government’s recommendations.