Secretary Betsy DeVos’ new rule will chill reporting of assault and harassment
OLYMPIA — Attorney General Bob Ferguson today joined 17 other attorneys general to file a lawsuit challenging the U.S. Department of Education’s new rule on reporting sexual assault and harassment at schools and universities.
Title IX of the Education Amendments Act of 1972 guarantees students and employees protection from discrimination on the basis of sex in educational programs and activities receiving federal funds. The law applies to schools from kindergarten through university, and includes protections from sexual violence and harassment.
Ferguson asserts the department’s new rule, published on May 19, will chill reporting of sexual harassment and assault. The rule narrows the scope of harassment covered by Title IX. Under the new rule, conduct must be “severe, pervasive and objectively offensive.” Previously, the reports only needed to allege one of those characteristics. Moreover, the rule prohibits universities from investigating campus sexual assaults that occur at off-campus housing or study abroad programs.
Ferguson asserts that the Department of Education’s rule violates the Federal Administrative Procedure Act because it exceeds the department’s statutory authority, is arbitrary and capricious, and was adopted without proper procedures.
“It’s hard enough for sexual assault survivors to come forward — why is the Trump Administration making it even more difficult?” Ferguson said. “Title IX is intended to ensure everyone has access to education free from harassment, violence and discrimination. This rule undermines that purpose.”
The lawsuit, filed today in U.S. District Court for the District of Columbia, also asserts the Department of Education’s new rule subjects K-12 schools and higher education institutions to an “inexplicable” August compliance deadline. The deadline will force them to revise codes of conduct, rules and regulations and collective bargaining agreements in less than three months during the COVID-19 pandemic. Failing to comply could put their federal funding at risk.
After the department proposed the new rule, Ferguson and 18 other attorneys general filed comments highlighting problems with the proposed rule, as did the University of Washington, Washington State University, The Evergreen State College, the State Board for Community & Technical Colleges, the Washington Office of the Superintendent of Public Instruction and others.
The attorneys general noted that data suggest that sexual harassment, discrimination and violence is common on campuses and notoriously underreported. Studies show only 12 percent of college survivors and 2 percent of 14- to 18-year-old female survivors report sexual assault to their schools or the police.
Studies also show that approximately 34 percent of survivors drop out of college, often because they no longer feel safe on campus.
Rule changes will chill reporting of sexual assault
Ferguson asserts the new rule discourages reporting of assault and harassment, and makes the allegations more difficult to prove. Despite some changes after the Department of Education received more than 124,000 public comments, the final rule significantly narrows the scope of sexual harassment covered by Title IX. Under the new rule, conduct must be “severe, pervasive and objectively offensive,” a higher standard than in similar proceedings under other civil rights laws, including, for example, those covering workplace sexual harassment. Previously, the reports only needed to allege one of those characteristics.
This means that institutions will no longer be able to initiate investigations into sexual harassment under Title IX except in response to the most egregious situations.
The new rule prevents universities from investigating misconduct at off-campus housing or in study abroad programs.
Assistant Attorney General Kristin Beneski is leading the case for Washington.
Ferguson has now filed 64 lawsuits against the Trump Administration. Ferguson has 28 legal victories against the Trump Administration. There has been one adverse decision on the merits. Eighteen of those cases are finished and cannot be appealed.
The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.
Brionna Aho, Communications Director, (360) 753-2727; Brionna.email@example.com
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