Campus harassment rules challenged

White House shows bias against accusers, suit says

Women’s rights advocates challenging the Trump administration’s rollback of federal policies on campus sexual harassment told a San Francisco federal magistrate Thursday that the administration revealed its biased mind-set a year ago when a top education official said 90 percent of the accusations came from women who had gotten drunk, had sex and then regretted it.

Groups representing accusers in cases of sexual harassment and assault filed a nationwide lawsuit in January after Education Secretary Betsy DeVos issued new guidelines last fall calling for colleges to set a higher standard of proof in those cases and strengthen rights of the alleged harassers, most of them men.

The administration wants the suit dismissed, saying the guidelines are neither discriminatory nor legally binding. At Thursday’s hearing on the request for dismissal, a central issue was whether the new guidelines are neutral measures to add safeguards to the system, and thus immune from legal challenge, or an act of discrimination against women.

Women’s advocates said their most direct evidence was an interview that Candice Jackson, the top civil rights official in DeVos’ agency, gave to the New York Times in July 2017.

“The accusations — 90 percent of them — fall into the category of ‘We were both drunk,’ ‘We broke up, and six months later I found myself under a Title IX (sex discrimination) investigation because she just decided that our last sleeping together was not quite right,’ ” Jackson said.

She later apologized and said she had been “flippant.” But attorney Robin Thurston

of the Democracy Forward Foundation, representing the plaintiffs, said Jackson had earlier shown the same mindset by describing as “fake victims” the women who had accused President Trump of sexual harassment. Thurston also cited DeVos’ comment that “if everything is harassment, nothing is,” suggesting that the standards should be narrowed.

Such remarks are “motivated by the baseless stereotypes that women tend to lie about harassment and assault,” Thurston told U.S. Magistrate Jacqueline Scott Corley. Education officials then “make it harder for women to make these claims.”

Justice Department lawyer Steven Myers countered that Jackson had merely been “expressing the view that too many complaints are being made” and had not shown any intent to discriminate against women.

Corley said she wasn’t sure that Jackson’s comments, even if they expressed hostility to women alleging sexual harassment, were enough to show that the new policy was discriminatory. But she put off a ruling on the request to dismiss the suit and asked for further written arguments through the end of August.

The central feature of DeVos’ guidelines is a recommendation that colleges require accusers of sexual harassment to prove their case through “clear and convincing evidence.” That is a tougher standard than the guidelines issued under President Barack Obama, allowing proof through a “preponderance of the evidence,” or more likely than not.

The new guidelines also recommend allowing only the alleged harasser to appeal an unfavorable campus ruling, rather than letting both sides appeal, and propose that disciplinary boards consider how a finding of harassment will impact the student’s future access to education.

In addition to alleging unconstitutional sex discrimination, plaintiffs in the suit, which include San Francisco’s Equal Rights Advocates, argue that the new guidelines are an irrational and unexplained — and therefore illegal — departure from long-standing federal education policy.

Corley questioned that argument. The nonbinding guidelines appear to represent only “this administration’s view of Title IX,” the 1972 law banning sex discrimination in education, and have no legal effect, she said, because a student who felt her rights had been violated could file a lawsuit.

But Thurston, the plaintiffs’ lawyer, said the guidelines would make such suits harder to win because Title IX requires proof that the school had been “deliberately indifferent to the student’s rights,” a difficult hurdle to clear once those rights have been narrowed.

Corley said it is an “intriguing” argument and asked both sides to discuss it in writing before she issues a final ruling.