AG Becerra: U.S. Dept. of Education Rule Would Weaken Protections Under Title IX for Survivors of Sexual Harassment and Violence

SACRAMENTO, Jan. 31, 2019 — California Attorney General Xavier Becerra, along with the Attorneys General from Pennsylvania and New Jersey, led a multistate coalition of 19 attorneys general in submitting a comment letter to the U.S. Department of Education (Department), urging them to withdraw their proposed rule that would undermine the anti-discrimination protections of Title IX of the Education Amendments Act of 1972 (Title IX) and weaken student protections against sexual harassment and violence. Title IX requires that students are provided an educational environment free from discrimination based on sex, including sexual harassment and sexual violence. While the Department’s draft rule claims to provide procedures to help implement Title IX, many of its provisions are inconsistent with Title IX and constitute an inappropriate exercise of the Department’s rulemaking authority.

“Students deserve to feel safe while pursuing their education, yet the Department of Education’s proposed rule would make it easier to get away with sexual harassment and violence on campus,” said Attorney General Becerra. “As the #MeToo movement continues to shed light on the work that still needs to be done to combat sexual harassment and violence, we must work together to make anti-discrimination protections stronger, not roll them back. That’s why our coalition is calling on Secretary DeVos to recall this regressive policy that would weaken protections under Title IX.”

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In the letter, the Attorneys General argue that the proposed rule, which claims to provide procedures to implement Title IX, would thwart the very purpose of Title IX in several ways, including:

  • Narrowing the definition of sexual harassment;
  • Restricting schools’ ability to address harassment that occurs progressively;
  • Exacerbating factors that prevent students from reporting sexual harassment and violence;
  • Hampering the rights of K-12 students to bring complaints;
  • Limiting schools’ obligation to respond to sexual harassment and violence that occurs outside “an educational program or activity”; and
  • Making it more difficult for the Department to take enforcement action on student claims.

The proper enforcement of Title IX is immensely important to states as well as students, families, teachers, and communities. The states have a strong interest in vigorously enforcing state anti-discrimination laws that promote students’ ability to learn in a safe environment free from violence and harassment. In addition, conduct that violates Title IX may also violate criminal laws, and in those cases, the Department’s proposal could interfere and hamper state and local prosecutors.

Finally, the Attorneys General argue that the Department is impermissibly withholding records that should be made public, including technical studies and data that the Department relied upon in drafting the rule and tens of thousands of public comments submitted on the regulations.gov website. In the letter, the Attorneys General call on the Department to make this information public promptly, to allow sufficient time for response.

Joining Attorney General Becerra in filing the letter are the Attorneys General of Pennsylvania, New Jersey, Delaware, Hawaiʻi, Illinois, Iowa, Kentucky, Maine, Maryland, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia.

A copy of the comment letter can be found here.