Oregon AG challenges Title IX rules, says they will weaken student victim protections

(Update: Adding Oregon AG legal challenge to Title IX changes)

SALEM, Ore. (KTVZ) -- Oregon Attorney General Rosenblum and 16 other attorneys general filed a complaint Thursday against the Trump Administration’s new rules that they say weaken protections for sexual assault and harassment victims from kindergarten through college.

“College campuses and K-12 schools are struggling with how to better support victims of sexual assault, while at the same time feeling overburdened. We need guidance from the U.S. Department of Education that helps schools navigate these difficult situations, not additional bureaucracy that makes it harder to discipline sexual misconduct,” Rosenblum said.

“If we don’t stand up for victims, who will? The DOE, by this rule, is sending a clear message that it does not care to fight for victims and survivors.”

The attorney general said the new rules from the Trump Administration will strip students of longstanding protections against sexual harassment in violation of Title IX’s mandate to prevent and remedy sex discrimination. The Rule will chill the reporting of sexual harassment, the complaint says, and make it harder for schools to reach fair outcomes as they investigate complaints. Among other flaws, the Department’s new regulations:

• Narrow the protections for students and others by redefining “sexual harassment” to exclude a broad spectrum of discriminatory conduct, arbitrarily excluding incidents of sexual harassment based on where they occur, and limiting when schools can respond to serious sexual misconduct;
• Require extensive and unnecessary new procedures that will reduce the number of reports and investigations and undermine the ability of schools to provide a fair process to all students; and
• Demand schools make significant changes by mid-August in the midst of the COVID-19 pandemic, making it impossible for students, parents, faculty, staff, and community members to help shape important school policies.

In 2015, Attorney General Rosenblum championed Oregon HB 3476, a bill that created confidentiality protections for the victims and survivors of campus sexual assault that are among the strongest in the country.  In 2019, she  joined with Representative Karin Power (D – Milwaukie) to support HB 3415, a bill which locked in longstanding best practices in Oregon protecting a survivor centered, trauma informed process for investigating campus sexual harassment and misconduct.

“Secretary Betsy DeVos’s rollback of Title IX civil rights protections for students across America is unjust and unlawful.  Victims of sexual harassment and assault deserve better, and I support Attorney General Rosenblum’s efforts to block these widely condemned rules and protect Oregon students,” said Rep. Power.

In addition to Oregon, the lawsuit was joined by the Attorneys General of Pennsylvania, New Jersey, and was joined by the Attorneys General of California, Colorado, Delaware, the District of Columbia, Illinois, Massachusetts, Michigan, Minnesota, New Mexico, New Jersey, North Carolina,  Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.

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News release from Oregon Senators Ron Wyden, Jeff Merkley:

WASHINGTON (KTVZ) -- Sens. Ron Wyden and Jeff Merkley joined 35 fellow Democratic senators in slamming Secretary of Education Betsy DeVos’ final Title IX rule, which will weaken protections for student survivors of sexual harassment and assault.

In a letter to Secretary DeVos, the senators stressed that it was inappropriate to ask schools to implement this new rule within 100 days amid the COVID-19 crisis and urged her to rescind the rule and focus on school safety—whether the threat is sexual assault and harassment or COVID-19.

“Not only does your misguided rule make it harder for students to report sexual assault and harassment, and create confusion for schools about their responsibilities, but the timing of the rule is completely inappropriate in light of the COVID-19 crisis. As schools across the country remain closed and struggle to continue supporting students, while also working to understand how to reopen and provide services safely, asking them to implement this rule in 100 days is grossly unfair and unrealistic,” the senators wrote.

“We urge you to prioritize students’ safety, revoke the final rule, and instead work to help make schools across the country safer for all students, whether the threat is sexual assault and harassment or COVID-19.”

Secretary DeVos’ final rule on Title IX of the Education Amendments Act of 1972, the landmark civil rights law which governs how schools handle allegations of sexual harassment and assault, will weaken protections for survivors by:  

• Narrowing the definition of sexual harassment and assault;
• Preventing schools from investigating instances that occur during a study abroad program, or are outside their programs or activities, including those that occur off-campus or online;
• Requiring schools to dismiss complaints if the complainants are no longer students—even if they dropped out or transferred due to the harassment;
• Allowing schools to avoid liability by claiming they have no knowledge of instances of harassment of assault—even when they reasonably should have known about them;
• Allowing schools to avoid liability if survivors report to the wrong person;
• Singling out harassment and assault as the only kind of misconduct to require live-hearings with direct cross-examination—even though many survivors have indicated that this would have prevented them from coming forward.

The senators also stressed the final rule will ultimately lead to challenges for students of color, students with disabilities, LGBTQIA+ students, low-income students, and others who face barriers to education.

“The rule fails to recognize the intersectional nature of many forms of harassment and discrimination, and the rule’s proscriptive policies will be particularly harmful to those without access to resources and legal counsel. By focusing on creating barriers for students to bring claims forward, rather than on what schools must do to actually protect the rights of students, the rule further exacerbates inequities for students already at risk,” wrote the senators.

In addition to Wyden and Merkley, the letter was signed by Senators Patty Murray, D-Wash., Tammy Duckworth, D-Ill., Tammy Baldwin, D-Wisc., Maggie Hassan, D-N.H., Patrick Leahy, D-Vt., Ben Cardin, D-Md., Bernie Sanders, I-Vt., Cory Booker, D-N.J., Sheldon Whitehouse, D-R.I., Elizabeth Warren, D-Mass., Ed Markey, D-Mass., Gary Peters, D-Mich., Jeanne Shaheen, D-N.H., Jack Reed, D-R.I., Dick Durbin, D-Ill., Sherrod Brown, D-Ohio, Dianne Feinstein, D-Calif., Richard Blumenthal, D-Conn., Chris Van Hollen, D-Md., Debbie Stabenow, D-Mich., Amy Klobuchar, D-Minn., Bob Menendez, D-N.J., Tom Udall, D-N.M., Kirsten Gillibrand, D-N.Y., Mazie Hirono, D-Hawaii, Tina Smith, D-Minn., Martin Heinrich, D-N.M., Maria Cantwell, D-Wash., Kamala Harris, D-Calif., Jacky Rosen, D-Nev., Mark Warner, D-Va., Tim Kaine, D-Va., Chuck Schumer, D-N.Y., Michael Bennet, D-Colo., and Bob Casey, D-Penn.

A copy of the letter is available here.