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Herring continues fight to stop Trump, DeVos efforts to undermine Title IX

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Attorney General Mark Herring has joined a group of 18 attorneys general in filing a motion seeking to block a new rule that would undermine Title IX and undo years of progress in preventing and responding to sexual violence, harassment, and discrimination on college campuses.

Secretary DeVos’s changes would narrow and weaken protections that ensure the safety of students and faculty, reduce reporting of incidents of sexual violence, compromise the confidentiality of survivors, and make students feel less safe on campus.

In their motion for a preliminary injunction or stay, the coalition seeks to keep the rule from going into effect on August 14, 2020. With school resources already stretched thin because of COVID-19, the rule and its unreasonable timeframe for compliance threatens to inflict direct, immediate, and irreparable harm to states and schools across the country by callously requiring schools to divert already-limited resources away from educating students during the challenges of a pandemic.

“Virginia has become a national leader in combating campus sexual violence and changing the way we work to prevent and respond to it and I will not allow the Trump Administration to let us backslide on that,” said Attorney General Herring. “Not only will these new regulations make students feel less safe on campus and undermine the critical protections that are in place for survivors, but they are also set to go into effect during a time when schools are stretching their resources to respond to a deadly pandemic. I will do everything I can to fight these dangerous regulations from going into effect and maintain the incredible progress we have made in implementing a trauma-informed approach to campus sexual violence.”

Title IX is a landmark law that is immensely important to states, students, families, teachers, and their communities. For nearly 30 years, it has required schools that receive federal funding to provide students with an educational environment free from sexual harassment. Despite the frequency of sexual harassment and its devastating effects on students, those subjected to harassment often refrain from reporting it.

One national study found that only 12 percent of survivors in college and two percent of female survivors ages 14–18 reported sexual assault to their schools or the police. An even smaller fraction of survivors officially report sexual harassment to a Title IX officer. Students may often choose not to report for many reasons, but federal regulations should never be a barrier to survivors seeking relief — and that is what the new Title IX regulations do.

The new regulations will also force schools to comply with Secretary DeVos’ unreasonable timeline and onerous requirements or face the prospect of losing federal funding at a time when the country’s education system can least afford it.

In the motion for preliminary injunction supported by more than 70 declarations from schools and state agencies, including Old Dominion UniversityGeorge Mason UniversityRichard Bland College, and Rappahannock Community College, the coalition asserts that the new Title IX rule will cause immediate and irreparable harm to the states’ schools and students in several ways, including by:

  • Narrowing the protections for students and others by redefining “sexual harassment” to exclude a broad spectrum of discriminatory conduct from Title IX’s, arbitrarily excluding incidents of sexual harassment based on where they occur, and limiting when schools can respond to serious sexual misconduct;
  • Requiring extensive and unnecessary new procedural requirements that will reduce the number of reports and investigations and undermine the ability of schools to provide a fair process to all students;
  • Forcing schools to dismiss any reports of sexual harassment that happen outside the scope of the new Rule, requiring schools to adopt parallel code of conduct provisions to keep their campuses safe – which will also cause confusion and chill reporting; and
  • Demanding schools make significant changes by mid-August in the midst of the COVID-19 pandemic. This could force schools to rush to create new policies without the usual input from students, parents, faculty, staff, and community members that helps shape important school policies.

Earlier this month, Herring filed suit to block these new regulations that would roll back years of progress by weakening and narrowing protections that ensure the safety of students and reducing reporting of incidents. In the suit, Attorney General Herring asserts that the Trump Administration’s new Title IX Rule strips students of longstanding protections against sexual harassment in violation of Title IX’s mandate to prevent and remedy sex discrimination.

In 2015, Herring chaired Virginia’s Task Force on Combating Campus Sexual Violence, which developed 21 policy recommendations that helped make Virginia a national leader in the movement to end campus sexual violence. The recommendations included five priorities, all of which would be undermined by Trump and DeVos’s rewritten regulations:

  • Engaging Our Campuses and Communities in Comprehensive Prevention: To fully address the underlying cause of campus sexual violence, there must be a strong prevention effort that focuses on changing societal norms, increasing awareness, and modifying risk behaviors. Prevention recommendations encourage ongoing education and primary prevention.
  • Minimizing Barriers to Reporting: Many complex factors determine whether a victim/survivor of sexual violence will come forward and seek help. These recommendations seek to eliminate barriers to reporting and provide innovative, accessible reporting options.
  • Cultivating a Coordinated and Trauma-Informed Response: With federal, state, local, and institutional response policies and procedures intersecting, it is critical to coordinate among multiple stakeholders to ensure the most effective response. Additionally, this response must be survivor-sensitive and trauma-informed to minimize additional harm to the victim. These recommendations aim to establish partnerships to ensure an effective and integrated response, with support and procedural protections for all parties.
  • Sustaining and Improving Campus Policies and Ensuring Compliance: Clear, transparent and consistent policies are critical to securing equitable outcomes for victims. These recommendations focus on how institutions can ensure a survivor-centered response.
  • Institutionalizing the Work of the Task Force and Fostering Ongoing Collaborations: The work of the Task Force is a first step in implementing effective changes to eliminate sexual violence on campuses. These recommendations include measures to solidify partnerships and collaborations to fulfill the goals outlined in this report.

Joining Herring in filing today’s motion are the attorneys general of California, Colorado, Delaware, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia.

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