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Judge Won’t Stop DeVos Title IX Rule From Taking Effect

By Evie Blad — August 10, 2020 3 min read
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A federal judge in New York refused to halt a new rule on responding to sexual harassment and assault in schools that is set to take effect Friday.

The regulation in question, issued by U.S. Secretary of Education Betsy DeVos May 6, set out the rules for how K-12 schools, colleges, and universities must respond to reports of sexual harassment and assault under Title IX, the federal law that prohibits discrimination in education on the basis of sex.

In a Sunday order, U.S. District Judge John G. Koeltl refused to grant a preliminary injunction, which would have halted the rule’s implementation while he heard arguments in the case, brought by school boards for the state of New York and New York City against DeVos and the U.S. Department of Education.

The rule hasn’t cleared all hurdles, though. A request for a preliminary injunction is pending in a similar case brought by 17 states in the U.S. District Court in Washington, D.C. And the rule faces another lawsuit brought by the ACLU and survivors’ advocacy groups.

The New York judge’s refusal to stop the rule is significant because, in doing so, he determined that the claims brought by plaintiff’s were “moot or without merit.” Court precedent gives federal agencies deference in interpreting federal law, Koeltl wrote.

DeVos, whose agency spent several years drafting and reviewing the rule, celebrated Koeltl’s decision:

The Title IX rule defines sexual harassment. Among other changes adopted by the Education Department, it allows schools shift the threshold that officials use to decide if a 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.

DeVos has argued that the rule is necessary to set out a clearer process for responding to claims of sexual misconduct and for protecting the due process rights of the accused.

In the New York lawsuit, plaintiffs argues that that the Education Department violated the Administrative Procedure Act, which dictates the process for collecting public comment on federal regulations, by acting in an “arbitrary and capricious” manner. The lawsuit also argues that implementing a new regulation would be overly burdensome as schools respond to the coronavirus pandemic.

The suit also argues that the Title IX rule was flawed because its definition of sexual harassment varies from that used in other federal laws prohibiting sex discrimination.

The rule defines sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity,” a stricter definition than is used in employment law. Schools will be found in violation of Title IX if they are “deliberately indifferent” to such conduct.

“However, the Supreme Court has declined to require uniformity when resolving ambiguities in identical terms even within the same statute,” Koeltl wrote in his order.

The Education Department’s analysis of thousands of public comments it received “showed that there were bitter disputes about which policy was the most appropriate to implement in almost every aspect of the Rule’s provisions,” the judge wrote.

“Nevertheless, on its face, the Rule states that it aims to make processes equal for both complainants and respondents and provides that complainants receive supportive measures and that a fair grievance procedure be followed before discipline may be imposed on respondents,” he continued. “Rather than harming students, the Rule has the potential to benefit both complainants and respondents by providing procedural guidance for grievance procedures.”

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