A controversial rule on how schools must respond to claims of sexual assault and harassment appears set to take effect Friday after a judge in a multi-state lawsuit refused to halt it.
The rule, one of U.S. Secretary of Education Betsy DeVos’ biggest policy shifts, details obligations for K-12 schools, colleges, and universities under Title IX, the federal law that prohibits sex discrimination in education.
In a Wednesday order, District of Columbia Circuit Court Judge Carl John Nichols denied a request by 17 states and Washington, D.C., to pause the rule while he hears arguments over their lawsuit, which seeks to strike it down entirely.
“Although Plaintiffs have raised serious arguments about certain aspects of the Rule, they have not established a likelihood of success on their claims, nor have they established that they are likely to suffer substantial irreparable harm pending further litigation,” Nichols’ order said.
That order follows a Sunday decision by a judge in a separate case, brought by New York City’s and New York state’s education departments. That judge also refused to grant a preliminary injunction of the directive, saying the parties’ arguments were not likely to succeed in a full hearing.
DeVos announced the Title IX rule in May after retracting guidance previously issued by the Obama administration and holding meetings with survivors, education, and student groups.
The rule defines sexual harassment. Among other changes adopted by the Education Department, it allows schools to 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.
The states suing in the D.C. case argue that the new rule “creates arbitrary and unlawful procedural requirements that will chill reporting of sexual harassment and make it harder for schools to reach fair outcomes.” They also say the rule’s definition of sexual harassment is inconsistent with other federal anti-discrimination laws, and that it would be costly and cumbersome for schools to implement the new policy as they also face the COVID-19 pandemic.