By John Terhune
BU News Service
BOSTON — Lawyers representing advocacy groups and victims of sexual violence argued in federal court Thursday that the Department of Education’s new Title IX rules governing how schools handle sexual misconduct complaints should be vacated, saying the rules force schools to adopt a biased and prejudicial system.
“What the department has done here is not to effectuate [Title IX’s mandate to prevent discrimination], but to undercut it and to gut it,” said David A. Newman, partner at Morrison & Foerster and an attorney for the plaintiffs.
District Judge William G. Young presided over the bench trial remotely as lawyers representing plaintiffs and the government argued technical legal questions before an online crowd of over 80 attendees.
In June, several nonprofit groups sued the Department of Education, Secretary of Education Betsy DeVos and Assistant Secretary for Civil Rights Kenneth Marcus just weeks after the department issued its “Final Rule” guidelines, according to court records. The guidelines, a follow up to the department’s 2017 Title IX changes, aim to transform the process by which schools investigate and adjudicate complaints of sexual misconduct.
The new rules, which have been criticized by universities, law professors and psychologists, among other groups, require schools to create a trial-like system where both accused and accuser submit to cross-examination by an adversarial opponent. The rules would force schools to adopt a “clear and convincing evidence” standard of proof that would unfairly tilt the scales toward respondents, according to the plaintiffs’ complaint.
The trial revolved around the question of whether the plaintiffs, which include both the original advocacy groups and individuals who joined the lawsuit later, have the standing to sue; that is, whether they have actually been injured by the department’s new rules. This issue was the basis for a Maryland court’s decision to dismiss a similar lawsuit brought by the ACLU in October.
Associate Deputy Attorney General Jennifer Mascott argued the government’s position that the plaintiffs lack standing. She said the plaintiff organizations can’t prove they have been hurt by the Final Rule, and all but one of the individual plaintiffs claim their rights were violated before the new guidelines went into effect, so the new rules won’t apply to them.
One plaintiff, referred to as Mary Doe, claimed she was assaulted after the rule went into effect this August, according to the plaintiffs’ complaint. Doe’s university told her that the new regulations prevented university officials from providing supportive measures, such as moving the accused student to a different dorm so the two would not cross paths. As a result, Doe said her mental health and grades have suffered greatly.
Mascott argued that Doe too lacks standing, as her university’s refusal to offer supportive measures resulted from a misreading of the guidelines rather than the rule itself. Even if Doe is concerned about participating in the new judicial process, said Mascott, she doesn’t have the standing to sue at this time because she has not actually been injured to this point.
After 30 minutes, the defense yielded to Newman, who argued that both Doe and other individual plaintiffs have been harmed by the department’s guidelines.
“She is absolutely and concretely injured by the unfairness of [this] process,” Newman said of Doe.
He argued that the plaintiffs who were allegedly assaulted before the new rules went into effect will still likely confront prejudicial proceedings, as resource-limited schools will simply apply their new process to all students rather than maintain two parallel systems.
“In all likelihood, schools will decide to simply apply the new rule across the board,” Newman said.
Newman argued that the Department of Education far overstepped its statutory jurisdiction by actively limiting the types of complaints that schools are allowed to review.
The new guidelines say that schools must dismiss complaints from those who aren’t currently associated or attempting to become associated with the institution in some way, such as students who have graduated or dropped out. Though the government argued this definition was sufficiently broad, Newman pointed out that the rule would perversely single out those who were most victimized by sexual misconduct.
“There’s an Alice in Wonderland quality to these rules,” said Newman, who argued that traumatizing victims to the point where they dropped out of school would shield abusers from Title IX complaints.
Young appeared open to the idea that Doe does have standing, even as he acknowledged that Mascott’s arguments for the defense were compelling. He did not suggest when he might issue a ruling but concluded the trial by praising all the attorneys involved.
“I want to say how impressed I am, and I sincerely mean this, by the level of advocacy of the three counsel that have appeared before me this afternoon,” Young said. “You all have been very helpful to the court.”
