Friday, January 26, 2018

Lawsuit Challenges Withdrawal of Campus Sexual Assault Policy

A group of organizations that advocate for sexual assault victims filed a lawsuit this week challenging the Department of Education's withdrawal of guidance documents that the prior administration had used to clarify Title IX's application to institutional response to sexual violence.  The complaint points out several of the ways that the 2017 withdrawal of the 2011 Dear Colleague Letter and 2014 Q&A weakens educational institutions' responses to sexual assault claims.  For example, the complaint alleges, the withdrawal prohibits educational institutions from issuing interim measures that adjust complainants' work and class schedules and housing assignments, requires them to consider the impact on a perpetrator's access to education even after the individual has been found responsible for sexual misconduct, permits them to ignore off-campus misconduct when deciding whether the complainant has endured a sexually hostile environment, permits one-sided appellate rights, and many other examples.

The complaint alleges that the agency's motivation is bias against complainants that is rooted in gender stereotypes that women's reports of sexual assault are not credible (a stereotype that persists all the way to the head of the Executive Branch, the complaint alleges).  The agency was also relying on misinformation, the complaint alleges, such as its belief that the 2011 Dear Colleague Letter limited due process protections for students, its belief that the DCL caused schools to treat respondents unfairly, and its belief that the false reports are rampant when research shows they are rare.

The complaint alleges that the withdrawal violates the Administrative Procedure Act because, in relying on stereotypes and false information, it constitutes arbitrary and capricious agency action. Its second count alleges that by disadvantaging victims of sexual harassment, the withdrawal is outside the scope of the agency's authority under Title IX. And it alleges that the reliance on gender stereotypes and disparate impact on women is a violation of equal protection secured by the Constitution's Fifth Amendment.

Civil rights lawsuits like this have a hard road to victory, to be sure. They often fall to threshold questions on standing, mootness, and finality, for example. Other things working against the plaintiffs here are the narrowness the disparate impact doctrine, the limited contexts so far in which courts have recognized gender stereotypes, and the tendency for courts to defer to agencies' decisions that lead to the absence of enforcement. But irrespective of this lawsuit's eventual success in the judicial arena, its impact in the political arena is as important or even more so. The lawsuit signals a marshaling of opposition against the direction the Department of Education is taking on sexual assault and serves as a focal point for political pressure. Additionally, it combats the mythologizing of the 2011 Dear Colleague Letter as the enemy of due process and provides a cogent argument against its withdrawal that will help to educate the public and mobilize political action. I'll be watching and updating the progress of the lawsuit in court, but its extra-judicial influence is important no matter the lawsuit's outcome.