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Experts Warn Betsy DeVos’s New Title IX Rules Will Lead to Onslaught of Pricey Lawsuits as Feds Take Huge Step Back From Sexual Assault Cases

By Tyler Kingkade | June 17, 2019

Attorney Wendy Murphy, center, speaks through a bullhorn as she and a small group of other women protest the Trump administration's rollback of sexual assault rules in Title IX outside of Moakley Federal Courthouse in Boston on Oct. 19, 2017, where activists were filing the nation's first lawsuit against Betsy DeVos and the Department of Education for the change. (Jessica Rinaldi/The Boston Globe via Getty Images)

When the Trump administration unveiled a proposal last fall to change how campuses deal with sexual misconduct under Title IX regulations, the prevailing narrative was that these rules would protect schools and accused students. This was in part because most of the debate leading up to the rollout had focused on what sort of due process should be afforded to collegiate men accused of assaulting a classmate. But over the past several months, as lawyers, former government officials, consultants and think tanks took a closer look at the fine print, a different image has emerged.

If the new Title IX rules go into effect, the U.S. Department of Education will be less involved in reviewing how schools and colleges handle sexual assault cases. Federal investigations will become less frequent, and Secretary of Education Betsy DeVos, therefore, will no longer need the entirety of her existing staff. In place of federal enforcement, however, there will likely be an onslaught of expensive lawsuits from students who believe their schools mishandled sexual assault and feel they can no longer turn to the government for intervention, experts say.

The way several experts see it, the regulations would essentially institute a framework that would give accused students increased protection in campus hearings and then keep the department’s Office for Civil Rights from spending as much time evaluating whether school policies comply with Title IX, the gender equity law. To them, it appears a hidden goal of DeVos’s approach to Title IX enforcement is to keep federal bureaucrats out of the picture as much as possible.

“I think that the message out of OCR, since the Trump administration took office,” said Brett Sokolow, president of the Association of Title IX Administrators, “is we’re a law-and-order division on those issues we care about, and everything else can go to hell.”

The department declined to comment for this story.

‘Students will find civil litigation to be the better avenue’

A debate over how schools, particularly colleges, should deal with sexual misconduct has raged since the Obama administration issued guidance in 2011 laying out a framework for what administrators must do when a student reports an assault. Victims’ rights advocates considered the 2011 directive a strong move to hold schools accountable, and it caused a seismic shift for how colleges in particular dealt with the issue. During Obama’s second term, the government also greatly expanded the scope of federal investigations into complaints that schools violated Title IX — deviating from a long-standing practice of solely reviewing individual reported incidents in a vacuum, and instead turning them into large-scale inquiries.

The department has pulled back from the Obama-era approach under DeVos, most notably by rescinding in November 2017 the campus sexual assault guidance, which she and other critics argued had overstepped federal power and pushed schools to disregard due process rights. The department also backed down from the practice of systemic probes looking for a pattern of Title IX violations and reinstated the historical practice of narrowly investigating allegations contained within complaints sent to the government. This change helped the department close out Title IX investigations at an exponentially faster clip — at least 166 cases were closed in 2017 and 2018, according to records obtained by The 74. The department stopped announcing when it ended Title IX reviews in early 2017.

In its most resolute move yet, the department last November proposed new regulations for how schools must deal with sexual misconduct, and more than 124,000 comments were submitted to the government in response. It’s unclear when the department will finalize the regulations, or how much the proposal could change before it’s implemented.

DeVos’s proposed regulations would narrow the definition of sexual harassment and restricts administrators to investigating only certain incidents — like assaults that happen on campus — meaning schools will have fewer Title IX cases on their plate. The proposal would allow colleges to use a stricter standard of evidence to find an accused student guilty of assault and would further raise the bar for how much a school must mishandle instances of reported sexual assault before the department finds it out of compliance. It also gives administrators several steps that, if taken, will protect them from being found in violation of the law, such as making sure administrators don’t have a conflict of interest or providing information about the process and the outcome in writing. This means that federal officials won’t be ordering as many schools to change their ways.

“There’s clearly a view in the DeVos department that the country is not well served by having Washington lawyers at the Department of Ed second-guess all manner of hearings and outcomes across thousands of educational institutions,” said Rick Hess, an education scholar at the American Enterprise Institute, a right-leaning think tank.

At least 70 schools agreed to overhaul their Title IX policies during the first two years of the Trump administration, after the Education Department found problems with how administrators dealt with sexual misconduct cases. The problem was especially pronounced among K-12 schools, records show, where the government found that many appeared unaware that Title IX required them to handle sexual assaults on campus. The department closed another 96 cases for administrative reasons or because federal lawyers found no violation in the situation that sparked the complaint.

But under the Trump administration’s proposed regulations, the feds won’t find a school in violation of Title IX unless the school is deemed “deliberately indifferent” — essentially when a school knows a student is experiencing a hostile environment and chooses not to act on it. This provision could lead to schools trying to “avoid Department oversight by launching perfunctory investigations or instituting remedies that failed to adequately address an ongoing hostile environment,” the American Civil Liberties Union wrote in a comment to the Trump administration. Currently, in line with common practice from previous administrations, the department examines whether a school took steps “reasonably calculated” to address harassment when it investigates a complaint.

“Very many of those complaints, when they come to OCR in the future, won’t even get opened for investigation if the new proposed regulation is implemented,” said Catherine Lhamon, assistant secretary for civil rights during the Obama administration.

The Small Business Administration in February chided DeVos for failing to consider the full costs that the new Title IX regulations would have on schools, and urged the department to go back to the drawing board. In a budget report last month, House Democrats repeated that criticism, and a handful of legislators led by Rep. Jackie Speier of California proposed an amendment to stop the department from implementing any new regulations dealing with sexual misconduct in schools. The amendment failed on Tuesday to make it into the final package headed to the full House.

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Justin Dillon, a Washington, D.C.-based attorney who has represented accused students at the college and K-12 level, thinks less pressure from the feds could be good for his clients, because he believes the playing field is already tilted pretty far in favor of accusers.

“Schools would just pay the appropriate normal amount of attention to these cases,” Dillon said. “They’ll treat them like they’ve treated most student conduct cases, they just won’t put a thumb on the scale.”

If the Education Department doesn’t offer as much recourse for students whose rights are violated, they will likely turn to filing lawsuits, which aren’t always as useful, according to attorney Lauren A. Khouri, who represents students in Title IX cases. Courts set a notoriously high bar under Title IX to find schools liable, federal judges have noted in opinions, and it can take years to resolve a case.

“There has to be this easier process so that survivors can get remedies quickly,” Khouri said, referring to federal investigations. “By the time the court system works it out, you’ve already lived in your dorm building with your assailant.”

The School Superintendents Association explained what it thinks will happen in its comment to the department on the proposed regulations: “If OCR no longer offers the same remedies and has more stringent standards for enforcing Title IX, then presumably students will find civil litigation to be the better avenue for addressing their grievances against schools, which could lead to a significant and much costlier redirection of district resources towards addressing Title IX complaints and violations in court.” A packet distributed by the National School Boards Association to lawyers for school districts in 2017 noted that settlements in Title IX cases involving sexual assaults committed by students have climbed as high as $5.75 million.

Charlotte-Mecklenburg Schools in North Carolina serves as one example. The Education Department investigated a case alleging that the district failed to look into a sexual assault that took place in a wooded area near campus, and it found in 2017 that the district was out of compliance with Title IX. But the federal investigation and its conclusion were not publicized, and the government didn’t expand the case beyond the single alleged assault reported in the complaint.

After local media in North Carolina reported that the alleged victim in the case sued the school last year, her attorney, Laura Dunn, said more people came forward with information that federal investigators missed.

According to the lawsuit against the Charlotte-Mecklenburg district, another female student reported that she was raped in those same woods in October 2014. The alleged offender was a male classmate who claimed to be carrying a gun in his backpack, with which he threatened to shoot himself. When the female student attempted to report the incident to the school, according to the suit, the principal warned that she would be suspended for having sex on campus if her alleged perpetrator was “found innocent.”

A year later, the suit states, the principal told students at an assembly that “some people go into the woods and don’t come back happy” and warned boys that “in these cases, you’re guilty until proven innocent because that’s just the price we pay for being men.” None of this was addressed by the Education Department’s investigation.

The district disputed these characterizations in a court filing but did not offer its version of events. A spokesperson for Charlotte-Mecklenburg Schools declined to comment.

Dunn believes these problems should have been uncovered during the federal investigation, but now her client’s lawsuit is the only hope to address the issues since the Trump administration decided to conduct less extensive Title IX probes.

“I think they’re intentionally trying to close the doors on the federal government being a check on civil rights on different entities, whether it’s the workplace or the schools,” Dunn said. “Title IX was targeted pretty heavily and pretty early because of the media attention on it.”

A quiet way to shrink the Education Department

With schools investigating fewer cases, and fewer schools probed for whether they violated Title IX, it makes sense that OCR would need fewer staff on hand— something that comports with DeVos’s more laissez-faire approach to federal oversight.

A GOP-controlled Congress increased funding for OCR last year, but during DeVos’s first year, the number of attorneys on staff declined by 11 percent, from 422 to 379. This is just one step toward a stated goal to scale back the size of the Education Department, which reflects a long-standing plank of the Republican Party platform.

“They’re banking on less work for them — it’s incredibly cynical,” Lhamon said.

Lhamon, who is now chair of the U.S. Commission on Civil Rights, ran OCR through the second half of the Obama administration, and she made changes. Throughout previous presidential administrations, when OCR decided to investigate a complaint, the agency would look only into the case at hand unless it discovered evidence of a systemic problem.

Lhamon’s decision to conduct schoolwide probes whenever OCR opened a Title IX complaint — based on the theory that if one student’s rights were violated, then the problem could be pervasive — meant the probes were more thorough. However, it also resulted in a large backlog of Title IX cases that went unresolved for up to five years. Schools argued that these multi-year probes drained much of their resources. One estimate pegged the cost of defending against Title IX investigations by OCR at around $91,000 per school. The National School Boards Association lobbied DeVos to scale back civil rights investigations, which the Trump administration did in 2017.

A mix of lawyers and law professors, right-wing and civil libertarian groups have all come out in support of the proposed Title IX regulations, arguing that they impose valuable due process protections and show that the department wouldn’t second-guess administrators’ judgments. They offered few comments on how these will play out in K-12 settings.

“What they’re trying to do is suggest in order for something to trigger federal involvement, it has to be much more explicitly and obviously a violation of federal statute,” said Hess, of the American Enterprise Institute. “It can’t simply rub a government lawyer the wrong way.”

Hess said the department hasn’t well articulated to the public how DeVos and her team are looking at this issue, which could have benefited from more press outreach or public events. But, Hess added, DeVos and her team have a tense relationship with the media.

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