TRENTON, NJ – Attorney General Gurbir S. Grewal today led a multi-state coalition in suing to block a new Title IX regulation from the U.S. Department of Education that would significantly weaken federal protections for students from sexual violence and harassment in education.
With an effective date of August 14, 2020, the new rules have K-12 schools, colleges, and universities scrambling to revise their long-standing sexual harassment policies for the coming academic year – all while dealing simultaneously with issues raised by the COVID-19 pandemic.
If the new rules take effect, the federal government will no longer require schools to address some types of sexual violence and harassment that they previously were required to investigate. The new rules also will deter students from complaining to their schools about sexual violence and harassment, will make it more costly for schools to prevent and remedy such misconduct, and likely will mean that schools discipline a smaller percentage of students who engage in misconduct.
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A total of 17 states and the District of Columbia are plaintiffs in the lawsuit, which was filed today in the U.S. District Court for the District of Columbia. Pennsylvania Attorney General Josh Shapiro and California Attorney General Xavier Becerra are co-leading the lawsuit with Attorney General Grewal.
“Because of the U.S. Department of Education’s new regulations, students who return to campus this fall will be less well protected from sexual violence than any students in a generation,” said Attorney General Grewal. “We won’t let that happen here in New Jersey. We won’t stand by as the federal government undermines the civil rights of our students. School disciplinary proceedings should be fair and equitable regardless of the subject matter. Unfortunately, the federal government has singled out sexual violence cases and made it harder to find the truth and do justice in those cases alone.”
“Ensuring safe, supportive and inclusive college environments is one of our core tenets of the state higher education plan. Every student should feel protected as they work toward completing their degree,” said Dr. Zakiya Smith Ellis, Secretary of Higher Education. “The new regulations will have a chilling effect on reporting when survivors experience an act of sexual violence on campus, and this timeline gives institutions only a few months to adopt the new rules as they navigate an ongoing public health crisis and resources are overwhelmed.”
“Title IX was enacted in 1972 to ensure equal educational opportunities for women and girls. In the guise of enforcing this historic legislation, the federal government’s final rule seriously undermines it,” said New Jersey Division on Civil Rights Director Rachel Wainer Apter. “We at the Division on Civil Rights are working with New Jersey schools to ensure they understand their continuing obligations under state law to prevent and address sexual harassment, to guarantee equal educational opportunities to all students regardless of gender, and not to act on gender stereotypes, even where conduct would no longer be actionable under Title IX.”
The federal government’s new Title IX rules would significantly change how schools respond to complaints of sexual harassment, including sexual assaults. Among other things, the rules include “improperly narrow” criteria for when schools must respond to reports of sexual harassment, so that fewer harassment cases will be investigated, according to the States’ complaint.
For example, under the new rules, the definition of “sexual harassment” for purposes of Title IX is narrowed to exclude egregious but isolated incidents of sexual harassment, including even some forms of unwanted touching. The rules also would excuse schools from addressing incidents of sexual violence that take place off campus or when students are studying abroad.
By narrowing the longstanding definition of sexual harassment, the new rules would make federal protections from sexual harassment more limited than federal protections from other types of civil rights violations.
The States also contend in their complaint that the new federal regulations impose burdensome new procedural requirements on schools, which could lose their federal funding if they make procedural missteps.
The new procedural requirements will discourage many survivors from reporting incidents of sexual violence, the States allege. The problematic rules include a requirement that alleged perpetrators of sexual violence in higher-education settings must be allowed to choose anyone to conduct a live cross-examination of survivors and witnesses, even if they are minors.
Because many incidents of sexual violence are never reported to authorities even under the current rules, a further decrease in reporting under the new rules would be significant. The States’ complaint notes that one national study found only 12 percent of college students subject to sexual assault reported the incident to their schools or the police. The same study found that two percent of female students aged 14-to-18 who were sexually assaulted reported the incident. Meanwhile, a recent report from the U.S. Department of Education found a “troubling rise of sexual assault in K-12 public schools.”
Deputy Attorneys General Marie Soueid, Estelle Bronstein, and Emily Wanger and Assistant Attorney General Mayur P. Saxena are handling the matter for the Department of Law & Public Safety, with assistance from Deputy Attorney General Jennifer Hoff.
For more information on resources available to victims of sexual assault and other sexual violence in New Jersey, please visit the website of the New Jersey State Police at https://www.njsp.org/division/operations/sexual-violence-info.shtml. Colleges, universities, and other schools throughout New Jersey also have resources available to help in cases of sexual violence and harassment.