Education Department Sued Over Sexual Assault Guidance

By Emily Wilkins

Three groups sued the Education Department in a bid to remove guidance that could make it more difficult for accusers to prove sexual assault on college campuses.

SurvJustice, Equal Rights Advocates, and Victim Rights Law Center, which represent victims of sexual assault, filed suit Jan. 25 in the U.S. District Court for the Northern District of California. They are being represented by Democracy Forward, the National Center for Youth Law, and the National Women’s Law Center.

The 2017 guidance allows colleges to decide whether they want to use a higher standard of evidence in determining responsibility in alleged sexual assault cases. It replaced guidance from the Obama administration that required schools to use a lower standard of evidence, making it easier for accusers to prove the assault or harassment happened.

While the 2017 guidance is meant to be temporary until the department finalizes a rule on campus sexual assault, it is already having an impact on colleges, said Miriam Rollin, director of the Education Civil Rights Alliance, which was co-founded by the National Center for Youth Law.

“Colleges and schools around the country are considering revamping their approaches based on the 2017 letter that the Department of Education sent. That is happening as we speak,” Rollin told Bloomberg Government.

She added that the guidance could be in place for years if a final rule is challenged in court, something Rollin said she feels is likely.

Students are also feeling the impacts of the new guidance, said Laura Dunn, executive director of SurvJustice.

“We’ve heard directly from student-survivors who are questioning whether it’s even worth reporting sexual violence and abuse because of the new Title IX policy,” she said in a statement. “We should be making it easier, not harder, for survivors to speak out.”

The Education Department declined to comment on the lawsuit. When the guidance was announced last September, Education Secretary Betsy DeVos said it would “help schools as they work to combat sexual misconduct and will treat all students fairly.”

“There will be no more sweeping them under the rug,” she said in a statement when the guidance was introduced last September. “But the process also must be fair and impartial, giving everyone more confidence in its outcomes.”

The case is Equal Rights Advocates et al v. U.S. Dep’t of Education et al, N.D. Cal., 3:18-cv-00535-JSC, complaint filed 1/25/18.

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