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Progressive Lawyers Help Biden Administration Gut DeVos’s Title IX Rules

Education Secretary Betsy DeVos / Getty Images
and • March 30, 2021 4:00 pm

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A lawsuit filed against the Department of Education could expedite the Biden administration’s efforts to roll back protections, implemented under former secretary of education Betsy DeVos, for college sexual assault victims and their accused assailants.

Public Justice and the National Center for Youth Law, two progressive legal groups, filed suit on March 8 on behalf of Berkeley High School’s Women’s Student Union in California. Lawyers for the plaintiffs claim DeVos’s changes to Title IX rules made it harder for public schools to adjudicate sexual misconduct cases and have led to an uptick in harassment on high school and college campuses.

President Joe Biden vowed to put a "quick end" to Trump-era Title IX rule changes while running for office. This lawsuit could get DeVos’s regulations off the books much sooner than they otherwise would. The plaintiffs are asking for a preliminary order barring enforcement of the rules, which can be obtained in a matter of months and would have the same practical consequence as a repeal by the administration. Lawyers for the plaintiffs have acknowledged as much.

"The Biden administration has rightly said it intends to review DeVos’s rules. This lawsuit complements that goal and offers the court an opportunity to more swiftly erase some of the worst parts of the regulations and restore critical protections that students need right now," Alexandra Brodsky, a Public Justice counsel working on the case, said in a statement.

Seth Galanter, senior director of legal advocacy at the National Center for Youth Law and another counsel on the suit, authored several of the Obama administration's "Dear Colleague" letters while he served as acting assistant secretary for the Education Department's Office of Civil Rights.

Issuing a regulation is time and labor intensive. Almost two years elapsed between public release of a draft of DeVos’s rules and their implementation in August 2020. The same is true of repealing a regulation.

President Joe Biden started that process by ordering a review of the DeVos rules on March 8, the same day that the Berkeley High School Women’s Student Union filed suit. 

The suit claims that DeVos’s regulations, which took effect in August, narrowed the definition of sexual harassment and let schools off the hook for misconduct that takes place outside of school hours. The rules also bar administrators from investigating any complaint not submitted through an official process. Before, administrators were legally responsible for any harassment they should have known about.

Lawyers representing the Berkeley group claim the plaintiffs have suffered because of the rule changes, which allowed school officials to overlook incidents of cyber-bullying or indecent exposure that took place outside of school. They also claim DeVos’s changes were not adequately explained, and that they conflict with the department’s longstanding views and Title IX. 

The Trump administration argued those changes brought the department in line with Supreme Court precedent on harassment and produced a fairer environment in the nation’s schools. Critics of Obama-era Title IX enforcements charge that fear of liability was driving schools to adopt heavy-handed investigatory procedures and mistreat those accused of wrongdoing. 

The Northern California case is the latest in a series of lawsuits that have pressured the courts to undo Devos’s Title IX rule changes. 

Candice Jackson, a former deputy assistant secretary for the Education Department’s Office of Civil Rights, told the Washington Free Beacon that while efforts to adjudicate the rules aren’t without their merit, it’s more probable that the Biden administration will be forced to resort to dismantling the rules through the law. 

"I have a hard time seeing a federal judge rewriting the rule, so if they want to replace the rules, they are stuck with going through the rulemaking process," Jackson said. "[But] their effort is not futile. Every chance they had from last summer through now could have persuaded a federal judge. It’s never a forgone conclusion. But we went through the hard work in the first instance, following legal justification and the right process." 

Jackson, one of the architects of DeVos’s rule changes, said she believes it would be challenging for the Justice Department to do an "about-face" and fail to defend the rules after judges have repeatedly decided in favor of DeVos’s Title IX rule changes.

It’s not clear how the Biden administration will respond to the lawsuit. Though the complaint was filed in federal court three weeks ago, no government lawyer has entered an appearance for the Education Department as of this writing, according to court filings. That could be a sign that the department is unsure how it wants to proceed.

The case, Women’s Student Union v. U.S. Department of Education, was filed in the U.S. District Court for the Northern District of California.