Herring sues to block Trump, Devos efforts to undermine Title IX

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Attorney General Mark Herring has filed suit to block new regulations from the Trump administration and Secretary of Education Betsy DeVos that would undermine Title IX and undo years of progress in preventing and responding to sexual violence, harassment, and discrimination on college campuses.

Herring’s suit highlights the many the ways that 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.

“Virginia has been a national leader in reforming the way we work to prevent and respond to campus sexual violence and I will never cede our hard-won progress to Donald Trump, Betsy DeVos, or anyone else,” said Herring. “These new regulations do not show any understanding of the realities of campus sexual violence or concern for its impact on survivors. They are dangerous, ill-informed, and unlawful, and we’re going to stop them.

“Working together with students, universities, advocates, and experts, we have made huge strides in implementing effective, evidence-based prevention efforts, and ensuring a more just, compassionate, and trauma-informed approach to handling instances of campus sexual violence. We should not and will not backslide or compromise the safety and well-being of our students and our campus communities.”

In this suit, 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.

The suit also makes it clear that the new Title IX Rule will cause irreparable harm to primary, secondary, and postsecondary schools in Virginia and the students they serve. Among numerous flaws, the Department’s new regulations:

  • Narrow 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;
  • Require 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;
  • Force 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. But this will also cause confusion and chill reporting; and
  • Demand 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.

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.

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