Title IX case against US likely to continue

SAN FRANCISCO — A federal magistrate said Thursday she was leaning toward granting standing for the plaintiffs in a case in which organizations that work with sexual assault victims are suing the U.S. Department of Education, alleging that recent changes to guidance regarding Title IX discriminate against women.

The plaintiffs contend Secretary of Education Betsy DeVos was watering down regulations intended to protect women when she decided to rescind and replace guidance to schools issued in 2014 about how to handle sexual assault investigations on campus. SurvJustice Inc. et al. v. DeVos et al., 18-CV00535 (N.D. Cal., filed Jan. 25, 2018).

The hearing was well attended, with all the pews filled in the small courtroom. Many of the people in the audience were female law students.

Robin Thurston, senior counsel for Democracy Forward Foundation who represents the plaintiffs, contended that public statements made by DeVos and her subordinates indicate she is biased against women who claim to have been assaulted.

Thurston referenced a claim Candice Jackson, leader of the Education Department’s Office for Civil Rights, made in July 2017 when she said that 90 percent of women who report assaults aren’t actually victims of a crime.

U.S. Magistrate Judge Jacqueline Scott Corley said that Jackson’s statement contradicted law enforcement data on sexual assault, but questioned whether those types of comments demonstrated discrimination against women or instead were a policy position that enforcement actions on college campuses were overzealous.

Steven Myers, an attorney with the U.S. Department of Justice’s civil division, argued that DeVos’ decision to rescind and replace guidance wasn’t a legally significant change.

“It’s a little bizarre to us that the government is saying this policy has no effect when it was released to such fanfare,” Thurston replied. “DeVos said she was lifting regulatory burdens.”

Corley responded that government statements made in ceremonies aren’t always legally relevant. “The government says a lot of things that actually aren’t accurate,” she said.

Thurston alleged the new guidance has had a chilling effect on women considering whether to report a sexual assault and that some victims are now unsure whether they will be able to get the protections they would have expected under the 2014 guidance.

“If you can be assured you no longer have to be in the same dorm or attend the same classes as the student who raped you, that’s important,” she said.

She contended the plaintiffs should have organizational standing because their purpose is to assist victims of assault and the women they want to help can no longer rely on the college review system to help them.

Corley said she still wasn’t sure that changing the guidance had a definitive legal impact, because a student who felt she was treated unfairly by her school could still sue for lack of compliance under Title IX.

Thurston said the standard for a school violating Title IX is that plaintiffs must show the academic institution was “deliberately indifferent” to the student’s rights and that DeVos’ change in guidance would lower that bar for enforcement.

“It would be hard to run afoul of that if they were relying on guidance from the Department of Education,” Thurston said.

Corley said she was intrigued by the argument but said she would have to allow additional briefing, as it wasn’t raised prior to the hearing.