Indiana Attorney General Curtis Hill has joined other Republican attorneys general in supporting the new Title IX regulation for how colleges and universities should handle sexual misconduct complaints, saying the new rule combats sexual harassment and protects constitutional liberties.
Unveiled by the U.S. Department of Education in May 2020, the new rule was a response to the guidance offered in the Dear Colleague Letter issued in 2011 by the Obama administration. The letter, citing statistics that showed a high number of women were victims of sexual misconduct, outlined schools’ obligations under Title IX for addressing sexual harassment and sexual violence.
However, since the letter was published, hundreds of lawsuits against institutions of higher education have been filed, mostly by male students who claim they were not able to defend themselves against allegations of sexual misconduct. Critics contend the letter pushed colleges and universities to create processes for investigating and hearing complaints that violated the constitutional due process rights of the accused.
In September 2017, the U.S. Department of Education, under U.S. Secretary of Education Betsy DeVos, withdrew the Dear Colleague Letter and began crafting a new Title IX regulation. The draft, published in November 2018, elicited more than 124,000 comments.
DeVos said the final rule, promulgated in May, strengthened Title IX protections for all students.
“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” DeVos said. “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process.”
Hill, who was suspended from the practice of law for alleged sexual misconduct, said the new rule ensures all parties in a sexual harassment case are treated fairly.
“It is axiomatic in our legal system that the accused are presumed innocent; that the accusers have some control over the process after filing a complaint; that individuals can have representation,” the Indiana Attorney General said in a statement. “… But serious accusations deserve serious inquires, and it is wrong to impose life-altering punishments onto students who are not given a real opportunity to defend themselves against accusations.”
The new rule is schedule to take effect Aug. 14, but 18 Democratic attorneys general filed a lawsuit in the U.S. District Court for the District of Columbia in June. In Commonwealth of Pennsylvania, et al. v. Elisabeth D. DeVos, et al., 1:20-cv-01468, the plaintiffs are seeking to have the rule declared unlawful and permanently enjoin officials from enforcing it.
“If the Rule is permitted to take effect, students across the country will return to school in the fall with less protection from sexual harassment,” the plaintiff attorneys general argue in their complaint. “The Rule will reverse decades of effort to end the corrosive effects of sexual harassment on equal access to education – a commitment that, until now, has been shared by Congress and the Executive Branch across multiple elections and administrations, as well as by state and local officials and school administrators.”
Hill and the other Republican attorneys general are supporting the new rule in an amicus brief written by the Attorney General of Texas. They contend the new regulation corrects long-standing abuses.
“For decades, however, educational institutions and the Department of Education have betrayed basic constitutional protections in an effort to purge anything offensive from campus,” the brief states. “These constitutional abuses reached a crescendo when President Obama’s Department of Education issued its misguided 2011 Dear Colleague Letter which trampled the rights of students and created a false choice: either combat sexual harassment or protect constitutional liberties. We propose a different option: do both.”
The plaintiffs assert the new rule “improperly narrows” Title IX by including only the most egregious sexual harassment conduct in its protections and sharply curtailing the investigation and enforcement of sexual misconduct allegations.
“The Rule creates substantive and procedural barriers to schools’ investigation and adjudication of sexual harassment complaints, and discourages students and others from making sexual harassment complaints,” the complaint states. “As a result, fewer sexual harassment complaints will be filed, and schools will be less well equipped to protect their students’ safety and rid their programs and activities of the pernicious effects of sex discrimination.”
In the amicus brief, the attorneys general highlight the procedural reforms in the new rule. The procedures include permitting the cross-examination of the parties by advisers, providing the option of conducting the proceedings with the complainant and respondent in different room, restricting the admissibility of a complainant’s sexual history and proclivities, and instituting rules of decorum.
“Although the specific requirements of constitutional due process vary on a case-by-case basis, the Final Rule sets forth a procedural due process standard that will pass constitutional must in most, if not all, cases while instituting safeguards that will effectively eliminate the Plaintiffs’ concerns about subjecting vulnerable witnesses to uncomfortable or intimidating situations and abuse of the proceedings,” the brief states.
Aside from Indiana, the other states joining the Texas amicus brief are Alabama, Alaska, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, Nebraska, Oklahoma, South Carolina, South Dakota and Tennessee.
The other states joining Pennsylvania in filing the complaint are California, Colorado, Delaware, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Rhode island, Vermont, Virginia, Washington and Wisconsin, along with the District of Columbia.