Advocates Sue to Unwind Trump Administration Guidance on Campus Sexual Assault

“We will not accept Secretary DeVos making it harder for survivors to have equal access to education."

Activists speak outside of Department of Education in D.C. to discuss sexual assault on college campuses on July 13, 2017. Lauryn Gutierrez / Rewire

Attorneys on behalf of three advocacy organizations filed a lawsuit Monday against the Trump administration alleging the Department of Education overstepped its authority in issuing Title IX policy addressing campus sexual assault. 

The Department of Education in September 2017 rescinded sexual violence guidance documents issued in 2011 and 2014 for schools that receive federal funding directing them how to handle allegations of campus sexual assault under Title IX of the Education Amendments Act of 1972. The Trump administration claims the guidance documents issued during the Obama administration were issued without notice and comment, a legal prerequisite for some types of agency actions. 

The lawsuit alleges the Trump Administration’s Title IX policy is unlawfully based on government officials’ discriminatory stereotypes about the credibility of women and girls who report sexual violence, citing comments made by Acting Assistant Secretary Candice Jackson in a July 2017 New York Times interview as one example.

Jackson told the paper that “90 percent” of campus sexual-assault complaints “fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.’”

The lawsuit was filed on behalf of plaintiffs SurvJustice, Equal Rights Advocates, and the Victim Rights Law Center.

Thursday’s lawsuit aims to reinstate protections from the Obama era, like the requirement that schools conduct prompt investigations following reports of sexual misconduct. The suit seeks to remove what the attorneys describe as discriminatory barriers the Trump administration has put in place that disadvantage survivors of sexual violence. The lawsuit targets the administration’s new policy of allowing schools to resolve claims of violent sexual assault through mediation, a process the attorneys claim avoids accountability, can be traumatic for survivors, and leads to unjust outcomes.

Under the guidance, schools wouldn’t have to conduct prompt investigations of sexual violence, and they wouldn’t have to issue interim measures—like moving out of a residence or changing class schedules—to protect victims of sexual misconduct from further harassment or violence during campus proceedings. Additionally, schools could give those accused of sexual violence the right to appeal an unfavorable outcome after an investigation, without affording the same opportunity to survivors of that abuse. The lawsuit seeks to undo that guidance.

“We will not accept Secretary [Betsy] DeVos making it harder for survivors to have equal access to education,” says Laura L. Dunn, executive director of SurvJustice, a survivor-led nonprofit legal group that represents campus survivors of sexual assault.

“We’ve heard directly from student-survivors who are questioning whether it’s even worth reporting sexual violence and abuse because of the new Title IX policy,” Dunn said. “We should be making it easier, not harder, for survivors to speak out, and we’re committed to fighting this unconstitutional action by the Trump Administration.” 

The lawsuit names DeVos, Jackson, and the Department of Education all as defendants.