The plaintiffs are SurvJustice in Washington, Equal Rights Advocates in San Francisco and the Victim Rights Law Center in Portland, Ore. Named as defendants are the department, Education Secretary Betsy DeVos and Candice Jackson, acting assistant secretary for civil rights.
An Education Department spokeswoman could not be reached for comment Thursday.
In September, DeVos said that her predecessors in the Obama administration had failed to strike the right balance in protecting the rights of accusers and the accused. She decried what she called a “failed system” of civil rights enforcement that, in her view, too often neglected due process. The department withdrew a 2011 letter from the Obama administration that declared that schools should use a standard known as “preponderance of the evidence” when judging sexual violence cases. The department also withdrew a 2014 question-and-answer document that spelled out school obligations under the Title IX antidiscrimination law.
At the same time, the department’s Office for Civil Rights issued interim guidance that allows schools to use either the preponderance standard or a tougher evidentiary threshold, known as “clear and convincing,” when deliberating cases. The new policy also allows schools to use mediation to resolve cases, if appropriate and if all parties agree, which the Obama administration had discouraged. It also declares that schools face “no fixed time frame” to complete a Title IX investigation. The Obama-era guidelines had encouraged, though not required, resolution of cases within 60 days.
Laura Dunn, executive director of SurvJustice, said the Trump administration’s action has deterred students from reporting sexual violence. The reports “definitely dropped,” she said. “We could tell right away.” Many survivors, she said, asked her group: “What does this mean? Should we report? What’s going to happen to our case?”
Dunn said the department’s action has also eased pressure on schools to resolve cases promptly. “Now schools know they can lay back, take their time,” she said.
The complaint alleges that the department and its leaders violated due process protections of the Fifth Amendment and a federal law known as the Administrative Procedure Act. It cited a statement that acting assistant secretary Jackson made to the New York Times that 90 percent of accusations “fall into the category of ‘we were both drunk,’ [and] ‘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.’ ”
Jackson later clarified that her conclusion was based on feedback from cases involving accused students, the Times reported, and she said that “all sexual harassment and sexual assault must be taken seriously.” Jackson also apologized for what she called a “flippant” remark, saying that she is a rape survivor herself and “would never seek to diminish anyone’s experience.”