On May 19, the National Review editors condemned the ACLU’s “absurd” lawsuit against Education Secretary Betsy DeVos’s new Title IX regulations, which govern sexual harassment and assault at schools that receive federal funding. They argue that we had sacrificed our principles by seeking to “weaken” due process standards. President Trump promptly retweeted it, though showed no evidence that he actually read it. But the National Review’s criticism bears no relation to the lawsuit we actually filed. Our suit challenges provisions letting schools ignore serious claims of sexual harassment altogether. It does not even challenge the very procedural protections the National Review champions. We believe schools can and must take complaints of sexual harassment seriously and provide fair process to all students. There’s no contradiction between the two.
The ACLU has long favored fair process for all parties to such disputes. Indeed, in our comments on the proposed rules, and in a public statement when the final rule was issued, we expressed support for fair procedures including live hearings, the opportunity for cross-examination, access to evidence, and a written decision carefully addressing the evidence. Given all this, one has to wonder whether the National Review even bothered to review our public response to the rule, much less our complaint.
Our lawsuit, filed on behalf of Know Your IX, Council of Parent Attorneys and Advocates, Inc., Girls for Gender Equity, and Stop Sexual Assault in Schools, does not challenge those aspects of the rule. Instead, it challenges provisions that govern schools’ responsibility to investigate and respond to sexual harassment complaints, not provisions requiring fair process for those accused of wrongdoing.
Specifically, we challenge a provision that allows schools to ignore any sexual harassment or assault that takes place off campus, such as in a student’s apartment, even if the perpetrator and victim are in the same classes and the incident has lasting effects on the campus environment. We challenge a provision that says colleges and universities can ignore widely known incidents of sexual harassment or assault if a formal complaint is not filed with a handful of school officials. It says that schools will not be held liable for responding unreasonably to claims of sexual harassment, so long as they are not “deliberately indifferent.” And it redefines “sexual harassment” to provide that it includes only those actions that are “severe, pervasive, and objectively offensive,” meaning that the school is free to ignore “severe” sexual harassment if it’s not “pervasive,” and can ignore “pervasive” harassment if it’s not also “severe.”
None of this has anything to do with the fair process rights of the respondent. It has to do with the obligations of schools to respond to sexual harassment complaints.
What’s more, these changes depart not only from decades of prior practice, but also from the rules that continue to govern schools’ responsibility, under parallel laws, to respond to claims of harassment based on disability, race, or national origin. Why, we ask, has the Department of Education let schools off the hook entirely for harassment and assault that they would have to respond to if it were based on disability or national origin? The Department failed to justify this blatant double standard.
The only provision our lawsuit challenges that has anything to do with the actual process of adjudicating complaints concerns the standard of proof. The Department allows schools to adopt either preponderance of the evidence or the more demanding clear and convincing evidence standard, but requires any school that uses clear and convincing evidence for complaints against faculty to use the same standard in disputes between students. Our view is that the preponderance of the evidence treats both the complainant and the respondent equally. It doesn’t presume guilt, as the National Review suggests. It simply says that whoever has the more persuasive evidence wins. That’s the standard used for all civil disputes between private parties, including sexual harassment lawsuits. The clear and convincing evidence standard, by contrast, improperly favors the respondent over the complainant, because it means that the accused will prevail even if the complainant offers stronger evidence than the respondent. Where both parties’ access to education is at stake, we think preponderance of the evidence is the right standard.
Claims that the ACLU has sacrificed its commitment to fairness are unfounded. To the contrary, we are fighting for fairness: fairness for those who suffer sexual harassment, who should be treated no worse than those who suffer harassment based on disability, race, or national origin. And fairness to both the complainant and the respondent, by adopting the standard of proof that governs all other harassment disputes.
We can and should take both sexual harassment and fair process seriously. Betsy DeVos did not.
Correction (5/22/20): In an earlier version, we wrote “…meaning that the school is free to ignore ‘severe’ sexual assault if it’s not ‘pervasive.’” This has been updated to sexual harassment.