NEW YORK – New York Attorney General Letitia James took action to ensure that millions of students across the country, including more than three million in New York, can retain longstanding protections against sexual harassment, including sexual assault, which impede their access to education. In a lawsuit filed against the U.S. Department of Education and Education Secretary Betsy DeVos in the U.S. District Court for the Southern District of New York, Attorney General James seeks to stop a new Trump Administration rule that will hinder how schools investigate, address, and remedy sexual harassment in schools, colleges, and universities. The new rule will undo protections required by Title IX of the Education Amendments Act of 1972, which has been a crucial tool for addressing and eradicating discrimination on the basis of sex for all students in federally funded education programs and activities for nearly 50 years, and has protected the most vulnerable populations in the school system, including women, students of color, LGBTQ+ students, and students with disabilities.
“The president has repeatedly shown that he doesn’t think sexual harassment is a serious matter, but his callousness now threatens our youngest and most vulnerable and could increase the likelihood of sexual harassment and abuse of students in schools,” said Attorney General James. “In the midst of the coronavirus pandemic, Secretary DeVos and the Trump Administration are doing everything in their power to endanger and silence survivors of sexual harassment and assault. We are fighting this rule because survivors deserve to be believed, deserve to be respected, and deserve to have the opportunity to tell their stories.”
In 1972, Title IX of the Education Amendments Act was signed into law, stating that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” All educational institutions — including both public and private — that receive federal funds are required to follow the law, meaning that almost all public and private colleges and universities must abide by Title IX regulations.
Despite nearly five decades of established policy, in November 2018, the Department of Education issued a notice of proposed rulemaking under the auspices of providing greater protections for individuals accused of sexual harassment. Attorney General James attempted to engage with the Trump Administration by submitting a comment letter to Secretary DeVos, in January 2019, over the Department of Education’s efforts to roll back key protections of Title IX for survivors of sexual assault on college campuses, as did nearly 125,000 other institutions and actors in New York and across the United States.
Nevertheless, last month, in the midst of the coronavirus disease 2019 (COVID-19) pandemic, Secretary DeVos and the Department of Education issued the final rule that will, this August, limit the protections against sexual harassment for the more than 50 million students enrolled in kindergarten through 12th grade in the United States and the approximately 20 million students enrolled in colleges and universities across the nation.
More than three million students who are enrolled in more than 5,000 K-12 schools and higher education institutions in New York State will be affected by this rule, which narrowly redefines sexual harassment to exclude many forms of harassment that deprive students and others from equal access to educational opportunities; drastically limits, and, in many instances, prohibits institutions from investigating and addressing harassment; guts Title IX’s longstanding protections for survivors of sexual harassment and assault; and abdicates the Department of Education’s central role in enforcing schools’ compliance with Title IX’s prohibitions against sexual harassment.
Additionally, the final rule prescribes — for the first time in Title IX’s history and in stark conflict with the central purpose of the law — an unduly burdensome grievance and adjudicatory process that schools must follow when they receive complaints of sexual harassment. Further, schools must implement these changes over the next two months — many costly – or risk losing billions in critical federal funds that they rely on to provide education to New York students.
The Trump Administration is also requiring schools to comply with the final rule despite conflicts with state and local laws — which may bar New York State and its educational institutions from enforcing their own policies that provide greater substantive and procedural protections to victims of sexual harassment and assault. This includes New York’s “Enough is Enough” law, which sets comprehensive and careful standards for colleges in addressing sexual assault, and which has served as a model for similar legislation across the country.
Despite laws currently in place, the majority of students who experience sexual harassment, including sexual violence, do not report this conduct to law enforcement or to their schools. According to statistics by the U.S. Department of Justice, only 20 percent of female students aged 18 to 24 who experienced sexual violence ever reported this conduct, but the final rule will further exacerbate this reality, given its impermissibly restrictive definitions of sexual harassment and limitations on actionable sex discrimination.
The State University of New York (SUNY) is not only New York’s largest college and university system — overseeing more than 400,000 students across 64 colleges and universities statewide — but is one the largest public higher education systems in the country, receiving over $1 billion annually in federal funds. The Department of Education’s final rule would risk SUNY losing billions in critical federal funds that the system relies on to provide education to New York students.
“By disregarding decades of a balanced approach to Title IX under which institutions of education investigated and adjudicated allegations of sexual assault and harassment, the federal government is creating an imbalance of justice against victims across the country,” said Sandra Casey, general counsel in charge, SUNY. “We fear for the consequences of their decision, and believe it is our moral obligation to take this legal action.”
“This rule will result in fewer protections for students who experience sexual assault on campus and demonstrates a callous disregard for the pandemic conditions nationwide,” said Mary Haviland, executive director, New York City Alliance Against Sexual Assault. “Since 2015, when New York State passed one of the most comprehensive laws governing campus sexual and domestic violence in the country, we have witnessed the impressive strides colleges have made to improve their response to this violence. We wholeheartedly support the efforts of Attorney General James to halt the enactment of this rule, and to preserve our state law on campus sexual and domestic violence for the safety of college students in New York State.”
The suit asserts that the Trump Administration rule specifically exceeds the Department of Education’s statutory authority and is in violation of section 706(2)(C) of the Administration Procedure Act; is not in accordance with law and is arbitrary and capricious, both in violation of section 706(2)(A); and is without observance of procedure, required by law in violation of section 706(2)(D).
Separately, Attorney General James has previously worked to protect all New Yorkers from sexual harassment, at school, in the workplace, and everywhere else. This past February, Attorney General James sent two comment letters to the Trump Administration opposing federal proposals that roll back critical anti-discrimination protections, including those for survivors of sexual harassment, for patients and students. In January, Attorney General James announced a settlement for 11 former employees who were sexually harassed and abused at the West Village restaurant The Spotted Pig. In June 2019, Attorney General James applauded the passage of legislation updating sexual harassment laws related to prevention policies and the claims process surrounding any lawsuits. In February 2019, Attorney General James announced legislation that would create penalties for discrimination or retaliation against immigrant employees into law, including those who have been sexually harassed, and in July 2019, Attorney General James applauded the signing of that legislation into law.
This matter is being handled by Senior Trial Counsel Joseph Wardenski, Special Counsel Morenike Fajana, and Chief Counsel for Federal Initiatives Matthew Colangelo — all of the Executive Division; and Assistant Attorneys General Amanda Meyer and Lindsay McKenzie, as well as Deputy Bureau Chief Elena Goldstein — all of the Civil Rights Bureau. The Civil Rights Bureau is a part of the Division for Social Justice. Both the Division for Social Justice and the Executive Division are overseen by First Deputy Attorney General Jennifer Levy.