As a second Trump administration approaches, we’re running out of time to confirm as many federal judges as possible to provide a check on his presidential power and curb his stated policy priorities.
There are 45 federal judicial vacancies and 15 nominations before the Senate right now—as our civil rights hang in the balance, take action now!
Last week, the public comment period for the Department of Education’s (ED) disastrous proposed rules to change how Title IX protects students from sexual harassment and assault in schools, closed. The National Women’s Law Center joined tens of thousands of survivors, civil rights groups, mental health professionals, school administrators, colleges, state legislators, state attorney generals, and U.S. senators who submitted comments opposing the rules.
Now it is time for DeVos and her team to start reviewing and responding to the 100,000+ comments that were submitted. We wish them the best of luck, because we had a lot to say.
Our 70-page comment criticizes pretty much every aspect of DeVos’s plan, pointing out how confusing and illogical the rules are, the negative impacts they’ll have on survivors and on the ability of schools to respond to sexual harassment, and the many ways ED didn’t follow the rules for their own rulemaking.
It’s worth the read, but here’s the TL;DR version, minus most of the legalese:
First and foremost, the proposed rules would be devastating for survivors. They would discourage reporting of sexual harassment and assault, shield schools from liability when they fail to respond to reports when they are made, and tilt proceedings in favor of named harassers and against survivors. The list of ways the proposed rules would accomplish such terrible goals is extensive, but here are just some examples:
We could go on—virtually every rule that ED proposes makes life harder for survivors and other harassment victims. Such a grand plan must have a clear motivation, but the reasons ED gives for the proposed changes just don’t hold up.
ED spends a lot of time justifying its proposed rules in the named of “due process” for named harassers. But “due process” is clearly a red herring: schools are already required to meet due process standards set by the courts and reiterated in the current rules that DeVos wants to scrap.
Regardless, ED insists on making schools use court-style trials that are simply not required in school proceedings. The proposed rules do not “restore” due process rights—they have always been there. Instead, the rules make it easier for schools to let named harassers off the hook for their actions.
Protecting named harassers isn’t the point of Title IX. Title IX was enacted to require schools to respond when a student is in danger of losing equal access to educational opportunities because of sex discrimination and it requires to schools to have prompt and equitable in grievance procedures. Title IX is not about punishment for named harassers—it is about remedying the effects of sex discrimination and providing supports to allow survivors to feel safe enough to thrive in school. ED completely ignores this when it sets out to privilege “due process” rights of the accused over the education of survivors.
ED also attempts to explain its proposed rules by claiming that they will give schools “flexibility” to run school misconduct proceedings. But many of the rules would do the exact opposite. The rules would require costly and inflexible procedures that will fall particularly heavily on community colleges, vocational schools, and other schools that lack infinite resources. Schools will also have to spend money and time trying to figure out what these confusing rules mean and retraining their employees to meet ED’s new standards. They would require schools to dismiss complaints that schools could have otherwise remedied. They would require schools to treat complaints of sexual misconduct differently than other forms of misconduct. None of these things improve flexibility, and schools aren’t fooled.
So what is ED’s true motivation behind these proposed rules? Everything in the rules and the comments made by the people in power in this administration indicate that ED simply doesn’t believe survivors.
ED ignores the repeatedly confirmed statistics showing that sexual assault and harassment is an epidemic in our schools, that rampant false accusations simply aren’t a thing, and that survivors already vastly underreport for fear that they will not be believed. DeVos has repeatedly trivialized the range of sexual harassment that students regularly face, claiming “if everything is harassment, then nothing is.” Former assistant secretary of ED Candice Jackson reinforced the myth of false accusations, claiming that “90 percent” of her office’s Title IX investigations were the result of “drunk[en]” sexual encounters and regret. President Trump himself has repeatedly publicly dismissed credible allegations of sexual harassment and assault and defended named accusers who were finally called out for their irreprehensible actions against women.
When it comes down to brass tacks, it’s clear that these proposed rules are not motivated by “due process” or school flexibility. They are motivated by sex stereotypes that women and girls lie about sexual harassment and assault, and that sexual harassment is not serious or important enough to prevent. Basically, DeVos and her team are using Title IX—a law banning sex-discrimination—to actively discriminate based on sex stereotypes. It’s sickening. It’s unacceptable. It’s illegal.
Hopefully, DeVos and her team will read our comment (and the tens of thousands of others) opposing these rules and do the right thing: withdraw them entirely. If she doesn’t, our fight won’t end there. The Trump Administration is no stranger to seeing its regulations fail miserably in court. And we’re no stranger to suing the Department of Education when it misbehaves.
