S.F. court dismisses challenge to harassment changes

A lawsuit by women’s rights advocates challenging the Trump administration’s rollback of federal policies on campus sexual harassment was dismissed Monday by a federal magistrate in San Francisco, who said the new standards can’t be challenged in court because they are only guidelines, with no penalties for violations.

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 more demanding standard of proof for allegations in these cases and to strengthen rights of the alleged harassers, most of them men.

DeVos recommended that colleges require accusers of sexual harassment to prove their cases through “clear and convincing evidence.” That is a harder test to meet than the guidelines issued under former President Barack Obama, which told schools to allow proof of the accusations by 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. In addition, the guidelines propose that disciplinary boards consider how a finding of harassment would impact the student’s future access to education.

Three women’s rights groups, including San Francisco-based Equal Rights Advocates, said in their lawsuit that the guidelines discriminated against women and had been adopted by many schools as rules for campus disciplinary cases. As evidence of DeVos’ intent, they noted that her top civil rights aide, Candace Jackson, had told the New York Times in July 2017 that 90 percent of campus accusations came from women who had gotten drunk, had sex and then regretted it.

But U.S. Magistrate Jacqueline Scott Corley said Monday the guidelines were not “final agency action” that can be challenged, because they are not binding.

“Voluntarily changing a policy in response to an agency’s nonbinding enforcement guidance is not the same thing as being required to do so by the guidance itself,” Corley said.

Although colleges face a loss of federal funding for violating federal law or regulations, Corley said, a school that chose not to follow DeVos’ new standards “would suffer no legal consequences” as long as it complied with Title IX, the 1972 law against sex discrimination in education.

The women’s groups also argued that the guidelines would have an impact on female students by making it harder to win a discrimination suit claiming their school had been “deliberately indifferent” to their rights, which now have been narrowed. Corley called that argument “intriguing” at a hearing in July but rejected it Monday.

“A school defending a deliberate indifference claim under Title IX could not simply point to its compliance with the 2017 guidance and escape liability,” she said.