David Cole is national legal director of the American Civil Liberties Union. Louise Melling is deputy legal director of the ACLU.
In her proposed rules governing the treatment of sexual harassment and assault claims on college campuses and K-12 schools, Education Secretary Betsy DeVos has managed to achieve exactly what the law she is enforcing prohibits: discrimination on the basis of sex.
The Education Department is charged with enforcing Title IX of the Civil Rights Act, which bans sex discrimination in schools receiving federal funding, but DeVos’s proposed rules would create a systemic double standard: They treat claims of discrimination based on sex fundamentally differently from claims of discrimination based on race — also forbidden under federal law. The Education Department offers no justification whatsoever for the disparities, and while women are, of course, accustomed to such differential treatment, that’s exactly what Title IX was designed to eliminate.
What are these double standards? Let us count the ways.
First, under the proposed rules for sexual harassment, schools must investigate only if the harassment is so “severe, pervasive, and objectively offensive” that it effectively “denies” a student equal access to education. Racial harassment, by contrast, need not meet the “severe, pervasive, and objectively offensive” standard and must be responded to if it merely “limits” access to education. Racial harassment need only be “sufficiently serious to deny or limit a student’s ability to participate in or benefit from the recipient’s education programs and activities” to trigger the obligation to respond.
Second, DeVos’s proposed rules would affirmatively forbid schools even from investigating complaints of sexual harassment unless they immediately met the “severe, pervasive, and objectively offensive” threshold. If they don’t, the schools would have to dismiss the complaint without investigating — even though investigation would often be necessary to assess whether harassment was “severe, pervasive, and objectively offensive.” No such bar on investigating complaints of racial harassment exists. Schools are free to investigate as they wish.
Third, while schools are required to investigate all claims of racial harassment of which they know or reasonably should have known, under DeVos’s proposed rules, universities need only respond to sexual harassment if a student files a formal complaint with a handful of specified school officials. If the student tells another faculty member of sexual harassment, or if the university learns of it through another student, it need not respond.
Fourth, while the Education Department requires schools to take “prompt and effective steps reasonably calculated to end” racial harassment, it would hold schools responsible for failing to respond adequately to sexual harassment only if they are “deliberately indifferent,” a standard the department has never applied to racial harassment.
And fifth, the DeVos rules would impose a strict set of procedural obligations on school disciplinary hearings addressing sexual harassment claims, including a requirement for live hearings, cross-examination and access to all evidence collected by investigators. These are important procedural safeguards, and we support them. But why are they important only for sexual harassment complaints and not racial harassment complaints, where no such requirements exist?
There is no justification for these disparities. There may be more sexual harassment complaints than racial harassment complaints on college campuses, but that hardly justifies making sexual harassment complaints more difficult to pursue. And while the Supreme Court treats race discrimination as more “suspect” than sex discrimination under the Constitution, the department’s regulations are enforcing not the Constitution but a statute.
Title IX was patterned on Title VI, which bars race discrimination in entities receiving federal funds and which the Education Department also enforces. In prohibiting sex discrimination, Title IX’s drafters used the same language as Title VI, simply substituting “sex” for “race.” The Supreme Court has held that Congress “explicitly assumed that [Title IX] would be interpreted and applied as Title VI had been.” Under DeVos’s rules, that would no longer be the case.
Of course, there are two ways to cure a double standard. The department could ratchet up the rules for sex discrimination, requiring schools to investigate and respond to claims of discrimination based on sex to the same extent as they are now required to investigate and respond to claims of discrimination based on race. Or the department could ratchet down the rules for race discrimination, allowing schools to ignore racial harassment that is severe but not pervasive, or that limits a student’s access to education but doesn’t deny it altogether. The latter response would be patently unacceptable, but maybe that’s what DeVos is planning.
For now, though, she has proposed to subject claims of sexual harassment to hurdles that simply do not apply to complaints of racial harassment. It’s not uncommon for President Trump’s appointees to use their agencies to undermine their very purpose. DeVos is no different: Introducing a double standard in the act of enforcing a law that was expressly designed to end double standards is nothing short of sex discrimination itself.