AG Shapiro: New Title IX Rule Unlawful, Limits Protections for Sexual Harassment Victims

June 4, 2020 | Topic: Rights

New Regulations Force K-12 Schools To Accept Burdensome Requirements or Lose Federal Funding

HARRISBURG―Attorney General Josh Shapiro today stepped up to defend survivors, schools, and universities from new Title IX regulations published by the Trump Administration. Shapiro’s action ― which he is co-leading with New Jersey, California, and 17 other Attorneys General ― is designed to stop these rules from weakening protections for sexual assault and harassment victims, and block the creation of inequitable disciplinary proceedings from kindergarten through college.

“Title IX’s mandate is simple: our schools must give women and men equal access to education, which means no one should experience sexual harassment,” said Attorney General Josh Shapiro. “But instead of making it easier for students to report, and for schools to respond, to sexual harassment, Secretary DeVos has unlawfully narrowed Title IX’s reach.

“If any Pennsylvania student is sexually harassed, or if any Pennsylvania student is accused of sexual harassment, they deserve to have a fair process. Secretary DeVos has exceeded her authority by issuing regulations that make this important right nearly impossible to achieve in practice, all while reducing protections for victims.

“These new regulations turn classrooms into courtrooms and will have a chilling effect on survivors throughout this country. We cannot afford to take such a step backwards in the fight for justice.”

Shapiro said it will be virtually unfeasible to implement these regulations in the midst of a once-in-a-century health crisis, as the Trump Administration is requiring. The new regulations will force schools to use scarce resources for unnecessary hiring and implementation — distracting them from critical needs like remote learning and reopening plans for the fall.

Sexual harassment of students is rampant in our schools. In grades 7–12, 56% of girls and 40% of boys are sexually harassed. In college, nearly two thirds of both men and women will experience sexual harassment. This chronic problem is vastly underreported and under-addressed. But instead of encouraging robust enforcement of Title IX’s antidiscrimination promise, the Trump Administration has violated Title IX by discouraging reporting and sowing confusion on school campuses across the country.

“Survivors of sexual trauma need trauma-informed policies that allow them to come forward without fear of an unjust process,” said Danielle Okai, Executive Director of the Pennsylvania Commission for Women in Governor Tom Wolf’s Office. “In a nation where 90% of college sexual assaults still go unreported, proposed changes like a narrower definition of sexual harassment and direct oral cross examination involving accusers and respondents ensure that even fewer will step forward and that creates a public safety issue for everyone. The Pennsylvania Commission for Women thanks the Attorney General’s Office for its commitment to safe campuses for all students. We will continue to advocate for legislation and policies that protect all sexual assault survivors in their pursuit of justice. ”

“I am grateful to Attorney General Josh Shapiro for recognizing that the significant changes called for in the Department of Education’s new regulations cannot be responsibly implemented overnight,” said University of Pittsburgh Chancellor Patrick Gallagher.

In the complaint, the Attorneys General assert the Department of Education’s new Rule strips students of longstanding protections against sexual harassment in violation of Title IX’s mandate to prevent and remedy sex discrimination. The new Rule also conflicts with federal and state statutes and Supreme Court precedent.

The Rule will chill the reporting of sexual harassment, the complaint says, and make it harder for schools to reach fair outcomes as they investigate complaints.

The Attorneys General say the new Title IX Rule will cause irreparable harm to primary, secondary, and postsecondary schools in Pennsylvania and other states and the students they serve. Among other flaws, the Department’s new regulations:

  • Narrow the protections for students and others by redefining “sexual harassment” to exclude a broad spectrum of discriminatory conduct from Title IX’s reach, arbitrarily excluding incidents of sexual harassment based on where they occur, and limiting when schools can respond to serious sexual misconduct;
  • Require extensive and unnecessary new procedural requirements that will reduce the number of reports and investigations and undermine the ability of schools to provide a fair process to all students;
  • Force schools to dismiss any reports of sexual harassment that happen outside the guidelines of the new Rule, requiring schools to adopt parallel code of conduct provisions to keep their campuses safe. But this will also cause confusion and chill reporting; and
  • Demand schools make significant changes by mid-August in the midst of the COVID-19 pandemic. This will require schools to bypass the mechanisms that allow students, parents, faculty, staff, and community members to help shape important school policies.

The complaint was led by the Attorneys General of Pennsylvania, New Jersey, and California, and was joined by the Attorneys General of Colorado, Delaware, the District of Columbia, Illinois, Massachusetts, Michigan, Minnesota, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.

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