Federal judge dismisses suit meant to halt new Title IX practices

Citing procedural issues, U.S. District Judge Jacqueline S. Corley of San Francisco dismissed without prejudice a lawsuit filed by a trio of nonprofit organizations against Education Secretary Betsy DeVos over guidance the agency issued in 2017 altering its Title IX practices.

Title IX prohibits educational programs that receive federal funding from discrimination on the basis of sex. It also lays out guidelines for how schools must adjudicate complaints of sexual harassment and sexual violence.

In September 2017, the Department of Education issued guidance rescinding policies put in place under the previous administration regarding procedural requirements for schools when dealing with Title IX complaints.

Specifically, the 2017 letter removed a requirement that schools take interim action during the investigation of claims, reverting to the previous practice which says they "may" do so. It also allows schools to decide what standard of proof to employ, rather than a 2011 policy which prescribed a preponderance standard.

Critics of the policy have called it a rollback in victim protection allowing schools to sweep incidents under the rug. Proponents said it was a victory for due process, and that the 2011 rules made the burden of proof too loose for fear of false allegations.

"The judge has invited us to revise our complaint and return to court. Our legal team is evaluating our options, but one thing we know for sure is that we're not going anywhere. Our organizations will continue to stand with student survivors of sexual violence," said Jennifer Reisch, legal director of Equal Rights Advocates, one of the plaintiff groups.

Magistrate Judge Jacqueline Scott Corley works in her office Monday morning Sept. 17, 2012 at the Phillip Burton Federal Building in San Francisco, Calif.

"We won't let this procedural ruling deter us from continuing to challenge policies that put survivors and other students at risk," she added. "And we will continue to challenge the sexist premises of the Trump administration's Title IX policy, including the false myth that survivors lie about sexual assault."

Mark Hathaway of Werksman Jackson Hathaway & Quinn LLP, who has represented both accusers and accused students in Title IX proceedings, said the current policy reverts to a due process-oriented approach that guards key components of a fair hearing such as the right to cross-examine witnesses.

He added that unlike the now-rescinded 2011 guidance, the 2017 one allowed for a public comment period so people could weigh in.

"Due process isn't just important, it's required by the Constitution. It's an issue that applies to all students, whether victims or accused ... where things turn on credibility, like in a 'he said, she said.' There has to be an opportunity for both sides to present their cases," he said.

Equal Rights Advocates, SurvJustice Inc., and the Victim Rights Law Center filed the lawsuit in January. All three are advocacy groups focusing on women's education, sexual violence protection, and sexual assault survivor legal representation.

They alleged the guidance had a chilling effect on their ability to represent victims, rooted in discriminatory views of sexual assault, and that it was improperly issued. SurvJustice Inc. et al. v. Devos et al., 18-CV00535 (N.D. Cal., filed Jan. 25, 2018).

SurvJustice and the Victim Rights Law Center did not respond to requests for comment. The Department of Education also did not respond to a request for comment.

While Corley found that the policy change affected the organizations' practices by forcing them to divert resources they would not have before the 2017 guidance, she wrote that problems arose when considering their standing to challenge the rule's issuance.

The nonprofits challenged the guidance on two more fronts: the Administrative Procedure Act, and as an ultra vires action. She disposed of the former by deciding the guidance is not a "final" action by the department as required by the law. In the latter, Corley agreed the department was within its enforcement purview.