Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 1 of 45 1 2 3 4 Jennifer A. Reisch (CA Bar No. 223671) Equal Rights Advocates 1170 Market Street, Suite 700 San Francisco, CA 94102 Ph: (415) 896-0672 Fax: (415) 231-0011 Emails: jreish@equalrightsadvocates.org 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Javier M. Guzman* Skye L. Perryman* Robin Thurston* Karianne Jones* Democracy Forward Foundation 1333 H St. NW Washington, DC 20005 Ph: (202) 448-9090 Fax: (202) 701-1775 Emails: jguzman@democracyforward.org, sperryman@democracyforward.org, rthurston@democracyforward.org, kjones@democracyforward.org Leecia Welch (CA Bar No. 208741) Alice Y. Abrokwa* National Center for Youth Law 405 14th Street, 15th Floor Oakland, CA 94612, and 1313 L Street, NW, Suite 130 Washington, DC 20005 Ph: (510) 835-8098 Fax: (510) 835-8099 Emails: lwelch@youthlaw.org, aabrokwa@youthlaw.org 24 Emily Martin* Neena Chaudhry* Sunu Chandy* Alexandra Brodsky* National Women’s Law Center 11 Dupont Circle, NW, Suite 800 Washington, DC 20036 Ph: (202) 588-5180 Fax: (202) 588-5185 Emails: emartin@nwlc.org, nchaudhry@nwlc.org, schandy@nwlc.org, abrodsky@nwlc.org 25 *pro hac vice motions filed or forthcoming 19 20 21 22 23 26 Counsel for Plaintiffs 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 1 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 2 of 45 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 1 2 3 4 5 6 7 8 9 SURVJUSTICE, INC., 1015 15th Street NW, Suite 632 Washington, DC 20005, EQUAL RIGHTS ADVOCATES 1170 Market Street, Suite 700 San Francisco, CA 94102, VICTIM RIGHTS LAW CENTER 520 SW Yamhill Street Portland, OR 97204, 10 11 12 13 14 15 16 17 18 19 20 Plaintiffs, v. ELISABETH D. DEVOS, in her official capacity as Secretary of Education, 400 Maryland Avenue SW Washington, DC 20202, CANDICE JACKSON, in her official capacity as Acting Assistant Secretary for Civil Rights, 400 Maryland Avenue SW Washington, DC 20202, U.S. DEPARTMENT OF EDUCATION, 400 Maryland Avenue SW Washington, DC 20202, 21 Defendants. 22 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case Number: 3:18-cv-00535-JSC AMENDED COMPLAINT FOR INJUNCTIVE RELIEF DEMAND FOR JURY TRIAL 23 24 1. 25 this action against Defendants U.S. Department of Education (“the Department” or “the 26 agency”), Secretary Elisabeth DeVos, and Acting Assistant Secretary for Civil Rights Candice 27 Plaintiffs SurvJustice, Inc., Equal Rights Advocates, and Victim Rights Law Center bring Jackson seeking vacatur of the Department’s new policy, as expressed in a Dear Colleague Letter 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 2 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 3 of 45 1 and Question and Answers guidance issued on September 22, 2017 (hereinafter jointly referred 2 to as the “2017 Title IX policy”), concerning Title IX of the Education Amendments of 1972 3 4 5 6 (“Title IX”). 2. Over 45 years ago, Congress enacted Title IX to prohibit discrimination on the basis of sex in educational programs and activities receiving federal financial assistance (hereinafter 7 “recipients” or “educational institutions”). This landmark civil rights law has helped fight sex 8 discrimination and promote equal educational access and opportunities for girls and women from 9 the classroom to the playing field. 10 11 12 13 14 3. Twenty years ago, acting on the basis of Supreme Court decisions and the recognition that Title IX’s promise of equality is hollow if a student can be subjected to sexual harassment with impunity, the Department issued its first guidance to educational institutions (both K-12 schools and institutions of higher education) on the standards that govern their response to sexual 15 harassment, a form of sex discrimination. Since then, through several successive guidance 16 materials issued under Administrations led by both political parties, the Department has 17 reaffirmed that Title IX’s prohibition on sex discrimination requires recipients to prevent and 18 redress sex and gender-based harassment. These policies recognize that students who experience 19 20 21 22 sexual harassment, including in its most extreme form, sexual violence, suffer not only physically and emotionally, but also in their ability to participate in and benefit from educational opportunities, on the basis of their sex. 23 4. The reaffirmation of Title IX’s protections continued until September 2017, when the 24 Department formally rescinded sexual violence guidance documents issued in 2011 and 2014— 25 purportedly because they were issued without notice and comment—and issued new conflicting 26 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 3 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 4 of 45 1 policy documents to educational institutions—without notice and comment.1 The 2017 Title IX 2 policy is substantively unlawful and procedurally deficient. It conflicts with existing Title IX 3 4 5 6 requirements and fails to provide a reasoned justification for its reversal in position. It is also based on a legally and factually mistaken view that earlier guidance limited due process protections for students. And in issuing the 2017 Title IX policy, the Department failed to take 7 into account reliance interests that students, and organizations like Plaintiffs that work with 8 students, have in the protections set out in prior guidance documents. 9 5. 10 11 12 13 14 The 2017 Title IX policy imposes significant changes on educational institutions and on students. For example, whereas before, educational institutions were permitted to offer interim measures, such as a revised class schedule or new housing assignment, to a student who had complained of sexual harassment, now they are prohibited from issuing interim measures in a manner that minimizes the burden for those students. The 2017 Title IX policy also relaxes 15 protections for sexual harassment victims, such as by permitting mediation between the parties, 16 even in cases of alleged sexual assault. 17 6. 18 girls, particularly their credibility regarding reported experiences of sexual harassment, including 19 20 21 22 Underlying these changes and reversals are unfounded generalizations about women and sexual violence. Myriad statements and actions by the Department’s leadership reveal this discriminatory viewpoint. Thus, not only does the Department’s 2017 Title IX policy fail to meet the reasoned decision and other requirements of the Administrative Procedure Act, it also 23 violates the Fifth Amendment’s equal protection guarantee. Plaintiffs therefore respectfully 24 request that the 2017 Title IX policy be vacated. 25 26 27 1 See U.S. Dep’t of Educ., Ltr. from Ass’t Sec’y Candice Jackson (Sept. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf (“2017 Dear Colleague Letter”); U.S. Dep’t of Educ., Q&A on Campus Sexual Misconduct (Sept. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf (“2017 Q&A”). 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 4 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 5 of 45 1 2 3 4 5 Jurisdiction and Venue 7. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331. 8. Venue is proper under 28 U.S.C. § 1391(e) because Equal Rights Advocates, a plaintiff, resides in San Francisco, California. 6 7 8 9 Intradistrict Assignment 9. located in San Francisco, California. 10 11 12 13 14 Filing is proper in this Judicial District because Equal Rights Advocates, a plaintiff, is Parties 10. Plaintiff SurvJustice, Inc., (“SurvJustice”) is a national not-for-profit organization based in Washington, D.C., founded in 2014. SurvJustice’s mission is to increase the prospect of justice for survivors of sexual violence. It pursues this goal through legal assistance, policy 15 advocacy, and institutional training. Through its efforts, SurvJustice aims to decrease the 16 prevalence of sexual violence throughout the country. 17 11. 18 19 SurvJustice provides legal assistance to survivors of sexual violence in campus proceedings, as well as civil and criminal legal systems. The majority of requests for legal assistance that SurvJustice receives are from students at institutions of higher education. 20 21 22 SurvJustice staff help sexual violence survivors navigate the campus grievance process, including reporting the violence, assisting survivors throughout any investigation, advising 23 survivors in campus hearings, helping survivors with any appeals, and helping survivors access 24 accommodations and services from their educational institutions. They frequently serve as 25 “advisors of choice” for college students in institutional disciplinary actions for cases of alleged 26 domestic violence, dating violence, sexual assault, or stalking, as provided for by the Clery Act 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 5 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 6 of 45 1 as amended by the 2013 Violence Against Women Reauthorization Act, 20 U.S.C. § 2 1092(f)(8)(B)(iv)(II) (“Clery Act”). SurvJustice staff also represent survivors in civil litigation or 3 4 5 6 refer survivors to other qualified lawyers for such representation. SurvJustice also assists survivors in reporting crimes to law enforcement, in advocating for prosecution, and by serving as media representatives for victims and their families in high-profile criminal cases. 7 12. 8 through compliance with federal law, enforcement of victims’ rights, and adoption of best 9 practices that include development of a culture that supports survivors and encourages “sexual 10 respect” (i.e., respect in sexual interactions and relationships). As part of this work, SurvJustice 11 12 13 14 SurvJustice also trains educational institutions to prevent and address sexual violence has provided the annual training required by the Clery Act to various campus officials across the country who investigate and adjudicate complaints of sexual assault, dating violence, domestic violence, and stalking. 15 13. 16 to legislators and policymakers on various state and federal legislation and policy efforts 17 regarding sexual violence, and working with changemakers within their communities on local 18 policy efforts, especially on college and university campuses. 19 20 21 22 14. SurvJustice also engages in policy advocacy by providing technical assistance and advice SurvJustice brings this action on its own behalf because the challenged 2017 Title IX policy (i) requires resource-intensive efforts that impede its daily operations; (ii) limits the efficacy of available avenues of redress; (iii) increases the costs it bears in its work on behalf of 23 sexual violence survivors—for example by causing it to waive intake fees and reduce or waive 24 speaking fees; and (iv) otherwise directly conflicts with, impairs, and frustrates SurvJustice’s 25 organizational mission and priorities. 26 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 6 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 7 of 45 1 15. 2 sexual violence, SurvJustice’s core mission and daily operations have been and will continue to 3 4 5 6 As an organization that provides direct assistance and referral services to survivors of be impeded by the chilling effect that the 2017 Title IX policy has had and continues to have on the reporting of sexual violence. 16. Following and as a result of the 2017 Title IX policy change, SurvJustice experienced a 7 decrease in the number of sexual violence survivors seeking its services. This trend is borne out 8 by SurvJustice’s interactions with particular college and university students who have questioned 9 whether they should continue with their plans to report sexual violence given the uncertainty 10 11 12 13 14 regarding their legal protections and an anticipated lowered likelihood of success created by the policy change. 17. Following the 2017 Title IX policy change and as a result of the change, SurvJustice has provided an increased number of student rights trainings at college and university campuses. 15 These additional trainings are necessary to respond to confusion created by the 2017 Title IX 16 policy among students about their legal rights. SurvJustice has also significantly reduced its price 17 for doing these trainings or agreed to provide them pro bono in response to increased need 18 resulting from the widespread uncertainty among students regarding their legal protections 19 20 21 22 following the 2017 Title IX policy change. 18. SurvJustice has also had to devote significant staff time to reviewing and understanding the 2017 Title IX policy in order to advise clients in ongoing campus investigations and advocate 23 on their behalf. This shift in use of time has decreased the amount of time that SurvJustice has 24 available to provide legal services, including work on ongoing civil litigation. 25 19. 26 The 2017 Title IX policy makes it more difficult for SurvJustice to accomplish its mission of obtaining justice for survivors of sexual violence, both because it makes beneficial 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 7 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 8 of 45 1 outcomes less likely for survivors and because even where those outcomes are still available, 2 success will take more staff time and effort. 3 4 5 6 20. For example, SurvJustice often advocates for schools to provide accommodations to its clients, including during the pendency of an investigation, so that they can continue to learn safely. SurvJustice often requests unilateral no-contact orders on its clients’ behalf but has 7 opposed mutual no-contact orders because they tend to be retaliatory.2 Yet the agency’s Title IX 8 policy change requires no-contact orders to be mutual, by prohibiting a school from making 9 interim measures available to only one party. The 2017 Title IX policy therefore impedes 10 11 12 13 14 SurvJustice’s mission by making it more difficult for SurvJustice to obtain interim measures that are appropriate for survivors of sexual harassment, and ensure ongoing access to education for its clients in accordance with its mission. 21. In addition, since the 2017 Title IX policy no longer identifies any benchmarks to 15 determine whether colleges and universities are meeting their obligation to resolve reports of 16 sexual violence in a timely fashion, SurvJustice has observed a trend in educational institutions 17 not responding at all, or not responding as promptly, to its clients’ complaints. This trend has 18 required SurvJustice to spend additional staff time and resources that it has not had to spend in 19 20 21 22 the past attempting to get school officials to respond to a survivor’s complaint of sexual violence. 22. The agency’s 2017 Title IX policy also makes it more difficult for SurvJustice to obtain beneficial results for its clients due to, among other particulars, its endorsement of one-sided 23 24 25 26 27 2 SurvJustice argues that mutual no-contact orders are forms of retaliation when there is no basis to place the order against victim-complainants other than the fact that they made a Title IX complaint. In such instances, schools limit victims’ access to educational opportunities and benefits as a direct result of the victims’ assertion of their federal rights and utilization of the Title IX grievance process. 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 8 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 9 of 45 1 appeal rights and a heightened standard of evidence that disfavors survivors and makes findings 2 of responsibility for sexual misconduct more onerous. 3 4 5 6 23. Plaintiff Equal Rights Advocates (“ERA”) is a national non-profit civil rights organization based in San Francisco, California. Founded in 1974, ERA is dedicated to protecting and expanding economic educational access and opportunities for women and girls. 7 24. 8 reform and legislative advocacy; providing free legal information and counseling; and litigating 9 cases involving issues of gender discrimination in employment and education at all stages, from 10 the administrative agency process through and including the United States Supreme Court. ERA 11 12 13 14 ERA furthers its mission through engaging in public education efforts, as well as policy has a long history of pursuing gender justice and equal opportunity for women and girls in education and has litigated a number of important precedent-setting cases under Title IX, including Doe v. Petaluma City School District, 54 F.3d 1447 (9th Cir. 1995), which held for the 15 first time that a school can be sued for sex discrimination under that law when it fails to address 16 one student’s serious harassment of another. ERA has participated as amicus curiae in scores of 17 state and federal cases involving the interpretation and application of procedural rules and civil 18 rights laws that have an impact on access to justice and economic opportunity for women and 19 20 21 22 girls. Through its Advice and Counseling program, ERA also provides free information and assists individuals on matters relating to sex and gender discrimination at work and in school. As part of its mission, ERA counsels and represents women who have been victims of sexual 23 harassment and/or sexual assault in matters pursuant to Title IX. 24 25. 25 requires resource-intensive efforts that divert resources from its daily operations; (ii) limits the 26 ERA brings this action on its own behalf because the challenged 2017 Title IX policy (i) efficacy of available avenues of redress to ERA’s clients and others it serves, (iii) increases the 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 9 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 10 of 45 1 costs ERA bears in its work on behalf of student survivors of sexual violence; and (iv) otherwise 2 directly conflicts with, impairs, and frustrates ERA’s organizational mission and programmatic 3 4 5 6 priorities. 26. ERA has had to expend resources over and above what it would otherwise have expended in order to counteract the effects of the 2017 Title IX policy change. For example, to counteract 7 the effects of the Title IX policy change, ERA has had to divert staff time and resources away 8 from core programmatic activities, such as litigating employment-related civil rights 9 enforcement cases and cases involving Title IX enforcement that do not relate to sexual violence 10 11 12 13 14 in schools, in order to step up its efforts to assist victims of sexual harassment and assault in educational settings obtain redress. In particular, ERA has launched a national initiative to End Sexual Violence in Education (“ESVE”) to narrow a justice gap for survivors of sexual violence that is expanding rapidly given the unlawful actions Defendants have taken. Through the ESVE 15 Initiative, which was launched as a result of the Department’s 2017 Title IX policy change, ERA 16 is expanding its Advice & Counseling program, re-designing its intake process, and developing 17 new resources to better reach and serve individuals facing sexual harassment and violence in 18 schools. Additionally, as part of ESVE and in order to counteract the negative impact of policy 19 20 21 22 changes and rollbacks at the federal level on ERA’s clients and the communities it serves, ERA is expending resources and diverting resources away from core programmatic activities to establish a network of attorneys to provide pro bono counseling and other assistance to victims 23 of sexual harassment and assault in schools. It also is planning to build a new website where 24 advocates for survivors can find and share resources with each other. 25 27. 26 Moreover, as an organization that has a longstanding history of providing direct assistance and referral services to survivors of sexual violence, ERA is hampered in its ability to 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 10 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 11 of 45 1 assist the victims of sexual harassment and assault that it represents and counsels in obtaining 2 equitable outcomes and redress for the harms they have suffered. In particular, and as discussed 3 4 5 6 more fully below, the 2017 Title IX policy change permits schools to offer asymmetric appellate rights that disadvantage victims of sexual harassment, including sexual assault; permits schools to evade responsibility for protecting students and the school community as a whole by resolving 7 claims of sexual assault privately through mediation; and rolls back other critical protections for 8 survivors that inhibit ERA’s ability to obtain redress and achieve results for its clients. 9 28. 10 11 12 13 14 Plaintiff Victim Rights Law Center (“VRLC”) is a non-profit organization with locations in Oregon and Massachusetts dedicated solely to serving the legal needs of rape and sexual assault victims. VRLC’s mission is to provide legal representation to victims of rape and sexual assault to help rebuild their lives and to promote a national movement committed to seeking justice for every rape and sexual assault victim. 15 29. 16 experiencing sexual violence, ensuring that survivors may stay in school; protecting their 17 privileged and confidential mental health, medical, and education records; preserving their 18 employment; maintaining safe housing; securing their immigration status; and swiftly accessing 19 20 21 22 VRLC provides legal free, comprehensive services to help restore victims’ lives after victim compensation and other benefits. As part of its work, VRLC provides legal services and/or facilitates the provision of legal services to individuals who have experienced sexual violence and/or assault on elementary, secondary, and higher education campuses. With almost 23 50 percent of VRLC’s clients under the age of 24, a substantial portion of its practice is 24 providing education-related legal consultation and representation. VRLC attorneys represent 25 campus victims to communicate effectively with campus administrators, acquire interim 26 measures and accommodations to secure their education, prepare and attend disciplinary 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 11 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 12 of 45 1 hearings, file appeals, and, if necessary, file complaints with the Department of Education, 2 Office of Civil Rights (“OCR”). 3 4 5 6 30. VRLC brings this action on its own behalf because, as detailed below, the challenged Title IX policy concretely frustrates its mission and purpose through (among other things) (i) requiring resource-intensive efforts that impede its daily operations, (ii) impairing its mission of 7 providing legal assistance to survivors of sexual assault and/or violence, (iii) limiting the efficacy 8 of available avenues of redress for the population it seeks to serve, (iv) requiring that resources 9 be diverted in order to combat the harmful effects of the Title IX policy, and (v) otherwise 10 11 12 13 14 directly conflicts with, impairs, and frustrates VRLC’s organizational mission and priorities. 31. The new 2017 Title IX policy has been devastating to VRLC’s mission and its operational activities. For example, as result of the 2017 Title IX policy, sexual violence and assault victims have expressed an unwillingness to report harassment and assault to campus 15 authorities, denying VRLC the ability to achieve its mission. VRLC saw an immediate chilling 16 effect after the Department issued its 2017 Dear Colleague letter and new Title IX policy. VRLC 17 has seen a decline in the number of sexual violence and assault survivors willing to pursue 18 justice through campus processes. The 2017 Title IX policy makes it less likely for VRLC 19 20 21 22 clients to engage in the campus process due to, among other particulars, its endorsement of onesided appeal rights and a heightened standard of evidence that disfavors survivors and makes findings of responsibility for sexual assault and violence more onerous. Moreover, as a result of 23 the new Title IX policy, there has been a decline in the number of survivors willing to file 24 complaints with the Department of Education and/or otherwise communicating with the 25 Department of Education where there is already an investigation pending. Such declines in 26 reporting and hesitance to participate in the grievance process either through educational 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 12 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 13 of 45 1 institutions or at the Department of Education directly threaten and frustrate VRLC’s mission 2 and purpose. 3 4 5 6 32. In addition to chilling and discouraging sexual violence and assault victims from availing themselves of campus processes, the new Title IX policy has made it difficult for VRLC to provide appropriate legal advice that helps its clients weigh their options with the best 7 information, leading to further reductions in reports of sexual violence and assault. 8 33. 9 new Title IX policy), VRLC’s mission remains frustrated given the nature of the Title IX policy. 10 11 12 13 14 In cases where a survivor or victim may proceed with a claim (which is rare under the In particular, the 2017 Title IX policy makes it more difficult for VRLC to accomplish its mission of obtaining justice for survivors of sexual violence, both because it makes beneficial outcomes less likely for survivors and because even where those outcomes are still available, success will take more staff time and effort. In addition, since the 2017 Title IX policy no longer 15 requires colleges and universities to resolve reports of sexual violence in a timely fashion, VRLC 16 has observed a trend in educational institutions not responding or not responding as promptly to 17 its clients’ complaints. This trend has required VRLC to spend additional staff time and 18 resources that it has not had to spend in the past attempting to get school officials to respond. 19 20 21 22 34. VRLC has also had to devote staff time to reviewing and understanding the 2017 Title IX policy in order to advise clients in ongoing campus investigations and advocate on their behalf. This use of time has decreased the amount of time that it has available to provide legal services, 23 including work on ongoing civil litigation. 24 35. 25 federal agency headquartered in Washington, D.C. As discussed more fully below, the 26 Defendant U.S. Department of Education (“the Department” or “the agency”) is a Department implements Title IX through issuing regulations and guidance documents and is also 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 13 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 14 of 45 1 tasked with administrative enforcement of Title IX, 20 U.S.C. § 1682. As a federal agency, the 2 Department is subject to the requirements of the Administrative Procedure Act and the United 3 4 5 6 States Constitution. 36. Defendant Elisabeth D. DeVos is the United States Secretary of Education. She is sued in her official capacity. 7 37. Defendant Candice Jackson is the Acting Assistant Secretary for Civil Rights and 8 Deputy Assistant Secretary for Strategic Operations and Outreach for the Department. She is 9 sued in her official capacity. 10 Background 11 12 38. 13 advances, requests for sexual favors, and other unwelcome verbal, nonverbal, or physical 14 conduct of a sexual nature that targets someone because of their sex, including sexual assault or 15 16 17 18 Sexual harassment, which is conduct, including but not limited to unwelcome sexual other sexual violence (hereinafter “sexual harassment” or “sexual harassment, including sexual violence”), is widespread in schools across the country, particularly in institutions of higher education. 19 39. Sexual harassment disproportionately impacts women and girls. One in five women and 20 one in fourteen men experience sexual assault while in college.3 As the last Administration’s 21 Task Force to Protect Students from Sexual Assault concluded: “For female bisexual and 22 23 24 25 26 27 3 The White House, The Second Report of the White House Task Force to Protect Students from Sexual Assault, 9 (Jan. 5, 2017), https://obamawhitehouse.archives.gov/sites/obamawhitehouse. archives.gov/files/images/Documents/1.4.17.VAW%20Event.TF%20Report.PDF. Similarly, a 2007 report by the National Criminal Justice Service found that one in five women were victims of sexual assault while in college and that approximately 6.1 percent of men were victims of completed or attempted sexual assault during college. In high schools, during the 2007-2008 school year, there were 800 reported incidents of rape or attempted rape and 2,800 reported incidents of other sexual batteries. 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 14 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 15 of 45 1 transgender students, victimization rates are even higher: More than 1 in 4 transgender students 2 and more than 1 in 3 of bisexual students experience sexual assault while in college.”4 3 4 5 6 40. While sexual harassment on college campuses is more widely known, students of all ages face sexual harassment, including sexual assault. A nationally representative survey of students in grades 7-12 in 2011 concluded that nearly half of the students surveyed experienced some 7 form of sexual harassment that school year, and the majority said that the experience had a 8 negative effect on them.5 Of these students, “[g]irls were more likely than boys to be sexually 9 harassed, by a significant margin.”6 Children who experience sexual violence are nearly 14 times 10 11 12 13 14 15 more likely to experience rape or attempted rape in their first year of college, according to the National Center for Victims of Crime.7 41. Experiences of sexual violence harm students physically, psychologically, and academically. Research shows that the effects of sexual assault in high school has consequences that are “delayed and long lasting.”8 Sexually victimized students are more likely to drop classes, 16 17 18 19 4 20 5 21 Catherine Hill and Holly Kearl, Crossing The Line, Sexual Harassment at School, American Association of University Women, 2 (2011), https://www.aauw.org/files/2013/02/Crossing-theLine-Sexual-Harassment-at-School.pdf. 22 6 23 7 24 25 26 27 Id. Id. Mark Keierleber, The Younger Victims of Sexual Violence in School, The Atlantic, Aug. 10, 2017, https://www.theatlantic.com/education/archive/2017/08/the-younger-victims-of-sexualviolence-in-school/536418/. 8 Dana Bolger, Gender Violence Costs: School’s Financial Obligations Under Title IX, 125, Yale L.J. 2106, 2118 (2016), https://www.yalelawjournal.org/feature/gender-violence-costs-schoolsfinancial-obligations-under-title-ix#_ftnref72 (“Violence—and institutional indifference in its wake—changes the courses of survivors’ lives, with educational and employment consequences following them far into the future.”). 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 15 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 16 of 45 1 change residences, and have lower GPAs, creating long-term consequences for professional 2 success and earning potential.9 3 4 5 6 42. Incidents of sexual harassment, including sexual violence, are often underreported, especially on college campuses. For example, the Campus Climate Survey Validation Study found that only 7 percent of students who indicated that they had been raped reported the rape to 7 school authorities.10 8 43. 9 and create ongoing hostile environments for those who are the targets of such attacks. If unreported or inappropriately addressed, sexual harassment can continue unchecked 10 Title IX of the Education Amendments of 1972 11 12 44. 13 U.S.C. § 1681, prohibits discrimination on the basis of sex in any federally funded education 14 program or activity. When a recipient institution fails to comply with Title IX or to take action to 15 16 17 18 Signed into law by President Nixon, Title IX of the Education Amendments of 1972, 20 remedy its non-compliance, it can be subject to a range of enforcement actions, including the loss of federal financial assistance. 20 U.S.C. § 1682. 45. The Supreme Court has squarely held that sexual harassment, which includes sexual 19 violence, is a form of sex discrimination that Title IX requires schools to address and 20 remediate.11 21 22 9 23 24 Victoria L. Banyard et al., Academic Correlates of Unwanted Sexual Contact, Intercourse, Stalking, and Intimate Partner Violence: An Understudied but Important Consequence for College Students, J. of Interpersonal Violence (June 21, 2017), http://journals.sagepub.com/doi/10.1177/0886260517715022; 25 10 26 11 27 The White House, supra note 3 at 10. See, e.g., Franklin v. Gwinnett Cnty Public Schools, 503 U.S. 60, 75 (1992) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986); Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 16 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 17 of 45 1 2 3 4 5 6 The Department of Education’s Implementation and Enforcement of Title IX 46. The U.S. Department of Education is the lead agency charged with enforcing Title IX. It may do so by establishing rules, regulations, and procedures that implement Title IX and define the ways in which educational institutions comply with Title IX’s requirements. See 20 U.S.C. § 1682. 7 47. 8 See 40 Fed. Reg. 24,128 (June 4, 1975). As amended, those regulations remain in effect today. 9 See 34 C.F.R. pt. 106. Among other things, the regulations incorporate Title IX’s 10 11 12 13 14 In 1975, the Department’s predecessor promulgated regulations to effectuate Title IX. nondiscrimination mandate, see id. § 106.31(a), identify specific actions that constitute discrimination, see id. § 106.31(b), and require assurances from recipients of federal financial assistance that their programs and activities comply with regulatory requirements, see id. § 106.4(a). 15 48. 16 action as the Assistant Secretary [for Civil Rights] deems necessary to overcome the effects of 17 such discrimination.” Id. § 106.3(a). 18 19 49. Recipients found to have discriminated on the basis of sex must “take such remedial The regulations require that recipients “adopt and publish grievance procedures providing for prompt and equitable resolution” of student and employee complaints of sexual 20 21 22 discrimination, including sexual assault and other forms of sexual harassment. Id. § 106.8(b). Such grievance procedures are designed to facilitate the reporting and resolution of complaints of 23 such sex discrimination so as to prevent and remedy hostile environments on campus. 24 50. 25 employee”—commonly known as a Title IX coordinator—“to coordinate its efforts to comply 26 These same regulations require that educational institutions “designate at least one with and carry out its responsibilities” under Title IX, including any investigation of any 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 17 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 18 of 45 1 complaint of sexual discrimination, including sexual violence and other forms of sexual 2 harassment. Id. § 106.8(a). 3 4 5 6 51. issued a series of guidance documents that explain the obligations recipient schools and universities are required to take under Title IX. 7 8 9 10 In addition to promulgating Title IX’s implementing regulations, the Department has The 1997 Sexual Harassment Guidance 52. The first of such guidance documents addressing educational institutions’ obligations to address sexual harassment, titled Sexual Harassment Guidance: Harassment of Students by 11 School Employees, Other Students, or Third Parties, was published in 1997 after a public notice 12 and comment period and “extensive consultation with interested parties, [including] students, 13 teachers, school administrators, and researchers.” See 61 Fed. Reg. 42,728 (Aug. 16, 1996), 61 14 Fed. Reg. 52,172 (Oct. 4, 1996), and 62 Fed. Reg. 12,034, 12,035 (Mar. 13, 1997) (“1997 15 16 17 18 Guidance”). The 1997 Guidance provided information regarding the standards used by the Department’s Office for Civil Rights (“OCR”) to investigate student complaints regarding educational institutions’ responses to sexual harassment perpetuated by school employees, other 19 students (peers), or third parties. 20 53. 21 sexual harassment in the educational setting. It noted that schools “are required by the Title IX 22 23 The 1997 Guidance set forth principles for how educational institutions should address regulations to adopt and publish grievance procedures providing for prompt and equitable resolution of sex discrimination complaints, including complaints of sexual harassment, and to 24 25 26 27 disseminate a policy against sex discrimination.” Id. at 12,040. 54. With respect to “informal mechanisms” for resolving complaints, the 1997 Guidance explained that they may be used by mutual consent of the parties but that it was inappropriate for 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 18 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 19 of 45 1 a complaining student to be required to work out the problem directly with the individual 2 accused of harassment and that mediation would be inappropriate even on a voluntary basis in 3 4 5 6 cases that involve sexual assault. Id. at 12,045. 55. The 1997 Guidance further explained that, during an investigation of a complaint, a school may take appropriate interim and remedial measures, such as placing the involved 7 students in separate classes or in different housing arrangements. The touchstone for these 8 measures was that they “be designed to minimize, as much as possible, the burden on the student 9 who was harassed.” Id. at 12,043. 10 11 12 13 14 56. The 1997 Guidance also made clear that, beyond temporary interim accommodations, a school “may be required to provide . . . services to the student who was harassed if necessary to address the effects of the harassment on that student.” Such service might include tutoring and mental health counseling. Id. 15 57. 16 school’s grievance procedures were “prompt and equitable,” noting that “many schools … 17 provide an opportunity to appeal the findings or remedy or both.” Id. at 12,044. 18 58. 19 20 21 22 The 1997 Guidance set forth factors that OCR would consider in evaluating whether a The 1997 Guidance explained that other legal or adjudicatory processes could not substitute for a school’s own processes. For example, where possible criminal conduct was involved, a police investigation “may be useful in terms of fact-gathering,” but, “because legal standards for criminal conduct are different, police investigations or reports may not be 23 determinative of whether harassment occurred under Title IX and do not relieve the school of its 24 duty to respond promptly.” Id. at 12,045. 25 26 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 19 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 20 of 45 1 2 3 4 5 6 The 2001 Revised Sexual Harassment Guidance 59. Following the Supreme Court’s 1998 decision in Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) and its 1999 decision in Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999), the Department issued revisions to the 1997 Guidance in 2001, entitled Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third 7 Parties. See 66 Fed. Reg. 5512 (Jan. 19, 2001). 8 60. 9 Fed. Reg. 66,092 (Nov. 2, 2000), reaffirms many of the principles set forth in the 1997 10 11 12 13 14 The 2001 Guidance, which also followed a public notice and comment period, see 62 Guidance. It “explains how the requirements of the Title IX regulations apply to situations involving sexual harassment of a student and outlines measures that schools should take to ensure compliance [with Title IX and its implementing regulations].” 2001 Guidance at 4. 61. The 2001 Guidance reaffirms the requirement that educational institutions publish 15 grievance procedures “providing for prompt and equitable resolution of sex discrimination 16 complaints, including complaints of sexual harassment, and to disseminate a policy against sex 17 discrimination.” Id. at 14. 18 19 62. The 2001 Guidance further provides that “[o]nce a school has notice of possible sexual harassment of students—whether carried out by employees, other students, or third parties—it 20 21 22 should take immediate and appropriate steps to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end any harassment, eliminate a 23 hostile environment if one has been created, and prevent harassment from occurring again.” Id. 24 at 15. 25 63. 26 The 2001 Guidance specifies a number of factors that would be considered in determining whether an educational institution’s grievance procedures were “prompt and 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 20 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 21 of 45 1 equitable,” as required by Title IX and the Department’s implementing regulations, including, as 2 in the 1997 Guidance, the acknowledgment that many schools “provid[ed] an opportunity to 3 4 5 6 appeal the findings or remedy or both.” Id. at 20. 64. The 2001 Guidance also reaffirms that although informal resolution of complaints might be appropriate in some cases, OCR had “frequently advised schools” that “mediation” or other 7 informal resolution would not be appropriate in the context of some forms of sexual harassment, 8 such as sexual assault, even on a voluntary basis. Id. at 21. 9 65. 10 11 12 13 14 The 2001 Guidance also reiterates the importance of interim measures discussed in the 1997 Guidance, stressing that such measures “should be designed to minimize, as much as possible, the burden on the student who was harassed.” Id. at 16. 66. Like the 1997 Guidance, the 2001 Guidance made clear that, after an investigation has concluded, a school “may be required to provide. . . services to the student who was harassed if 15 necessary to address the effects of the harassment on that student.” Id. at 16-17. 16 67. 17 or insurance company investigations as a substitute for their own processes, again emphasizing 18 the different purposes and legal standards applicable in those third-party investigations. Id. at 21. 19 20 21 22 68. The 2001 Guidance cautions schools, as did the 1997 Guidance, about relying on police Finally, the 2001 Guidance notes that both employees and students of public schools and universities are entitled to certain Constitutional due process protections, and that the rights established under Title IX must be interpreted consistent with any federally guaranteed due 23 process rights involved in a complaint proceeding. The guidance instructed, however, that 24 recipients should ensure that “steps to accord due process rights do not restrict or unnecessarily 25 delay the protections provided by Title IX to the complainant.” Id. at 22. 26 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 21 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 22 of 45 1 2 3 4 5 6 The 2011 Dear Colleague Letter and 2014 Q&A Document 69. Even with the Department’s enforcement and guidance activities, sexual harassment, including sexual violence, has remained a pervasive problem on campuses and in schools across the country. 70. In the wake of these ongoing challenges, educational institutions solicited assistance from 7 the Department of Education in further understanding their obligations under Title IX in regard 8 to sexual harassment, particularly sexual violence. Thereafter, in 2011, the Department issued a 9 “Dear Colleague Letter on Sexual Violence” and, in 2014, a set of Questions and Answers to 10 11 12 13 14 respond to additional concerns raised by schools and students.12 71. Citing the “deeply troubling” statistics concerning sexual violence on campuses, the 2011 Dear Colleague Letter provided clarity on how schools should address peer-on-peer sexual harassment, including sexual violence, as well as steps that schools could take to respond in 15 accordance with the Department’s regulations and 2001 Guidance. 16 72. 17 importance of schools offering services to survivors, such as tutoring and mental health care, to 18 19 The 2011 Dear Colleague Letter reiterated, consistent with the 2001 Guidance, the ensure that they can continue to learn in the wake of sexual harassment, including sexual violence. 2011 Dear Colleague Letter at 15-17. It noted, again consistent with the 2001 20 21 22 Guidance, that necessary accommodations may include interim remedies to protect the complainant during the investigation. Id. at 15. 23 73. 24 prompt and equitable adjudication. The 2011 Dear Colleague Letter also made clear that Title IX 25 26 27 As in the 2001 Guidance, the 2011 Dear Colleague Letter discussed what constitutes a 12 See U.S. Dep’t of Educ., Ltr. from Ass’t Sec’y Russlynn Ali (Apr. 4, 2011), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf (“2011 Dear Colleague Letter”); U.S. Dep’t of Educ., Questions and Answers on Title IX and Sexual Violence (Apr. 29, 2014), https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (“2014 Q&A”). 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 22 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 23 of 45 1 requires schools to provide complainants and respondents equal rights and opportunities 2 throughout an investigation and any appellate process. Id. at 12. 3 4 5 6 74. The 2011 Dear Colleague Letter also discouraged schools from allowing a complainant and alleged perpetrator to directly cross-examine each other. As the guidance explained, “[a]llowing an alleged perpetrator to question an alleged victim directly may be traumatic or 7 intimidating, thereby possibly escalating or perpetuating a hostile environment.” Id. at 12. 8 75. 9 Guidance that mediation is an inappropriate way to resolve complaints of sexual violence. Id. at 10 11 12 13 14 The 2011 Dear Colleague Letter reiterated the ongoing policy expressed in the 2001 8. 76. The 2011 Dear Colleague Letter also discussed, in response to questions that school administrators had posed, the burden of proof that recipient schools should use in investigating complaints of sexual assault. The 2011 Dear Colleague Letter explained that, in investigating 15 Title IX complaints, OCR reviews a school’s grievance procedures to determine whether a 16 school uses preponderance of the evidence as the complainant’s burden of proof. It explained 17 that this burden appropriately reflected the burden used in litigation under Title VII of the Civil 18 Rights Act of 1964, to which courts have looked in construing Title IX, as well as the burden 19 20 21 22 used by OCR in investigating Title IX complaints against recipients of federal funding. Id. at 11. 77. Also consistent with the 2001 Guidance, the 2011 Dear Colleague Letter reiterated that public and state-supported schools must provide due process protections to an alleged 23 perpetrator. Id. at 12. 24 78. 25 guidance in response to questions that it received from schools and colleges in the form of a 26 In 2014, the Department issued further clarifications consistent with its previously issued Questions and Answers document (“2014 Q&A”). The 2014 Q&A provided examples of 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 23 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 24 of 45 1 proactive efforts schools could take to prevent sexual violence and remedies schools could use to 2 end such conduct, prevent its recurrence, and address its effects. 3 4 5 6 79. Among other things, the 2014 Q&A further discussed Title IX’s mandate that schools take steps to ensure equal access to educational programs and activities, including by protecting a complainant with interim measures pending resolution of a complaint. Such measures should 7 allow the complainant to avoid contact with the alleged perpetrator and “to change academic and 8 extracurricular activities or his or her living, transportation, dining, and working situations as 9 appropriate.” 2014 Q&A at 32. This requirement is consistent with the 2001 Guidance’s 10 11 12 13 14 emphasis on Title IX’s mandate to take immediate steps once a complaint is filed to eliminate any hostile environment and prevent harassment from occurring again. Id. at 32-33; see also 2001 Guidance at 12. 80. The 2014 Q&A also emphasized that schools should provide the same rights and 15 opportunities to complainants and respondents. 2014 Q&A at 26. 16 81. 17 notice and comment process because they did not reflect any policy change, but rather reminded 18 schools of longstanding statutory and regulatory obligations to address sexual harassment, 19 20 21 22 The 2011 Dear Colleague Letter and the 2014 Q&A were not the subject of a public including sexual violence, while providing more details and examples of how to do so. Both documents were the product of the Department’s consideration of the standards that OCR had relied on in dozens of investigations and reflected the input of students, faculty, administrators, 23 staff, attorneys, Sexual Assault Response Teams (“SARTs”), counselors, student advocates, 24 medical personnel, parents, law enforcement, prosecutors, and campus police. 25 26 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 24 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 25 of 45 1 2 3 4 5 6 The Trump Administration’s Change in Title IX Policy 82. Following his inauguration, President Trump appointed Secretary DeVos to lead the Department of Education. In April 2017, Secretary DeVos selected Candice Jackson to serve as Deputy Assistant Secretary and to lead OCR as Acting Assistant Secretary for Civil Rights. 83. Secretary DeVos and Ms. Jackson have repeatedly criticized the protections that Title IX 7 affords to women and other survivors of sexual harassment, including sexual violence. Much of 8 that criticism has been based on discriminatory stereotypes and unfounded generalizations about 9 female college students in general and female victims of sexual violence in particular. 10 11 12 13 14 84. For example, Ms. Jackson has repeatedly criticized core civil rights achievements, such as legal protections against sexual harassment. For example, in a book she published in 2005, Ms. Jackson stated that laws to combat sexual harassment gloss over “the reality that unwanted sexual advances are difficult to define.”13 15 85. Ms. Jackson regularly questions the veracity of sexual harassment and assault claims 16 made by women, stating, for example: 17 [I]t wasn’t enough that women are not legally forbidden anymore from getting an education and entering the workforce. Feminists and other leftists thought the problem of workplace sexual harassment needed a legal remedy. Since sexual harassment is such a nebulous experience, defined so subjectively and turning on the perceptions of the people involved, laws banning it are difficult to articulate. But they have tried anyway, with the side result that many men self-censor themselves to avoid being accused of sexual harassment, and institutions remove valid expressions of art and learning to avoid “even the appearance of sexual harassment.”14 18 19 20 21 22 23 86. In October 2016, a few months before joining the Department, Ms. Jackson stated in a 24 25 social media post that women who claimed that Donald Trump sexually harassed them were 26 13 Candice Jackson, Their Lives: The Women Targeted by the Clinton Machine (2005), at 138. 27 14 Id. 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 25 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 26 of 45 1 “fake victims.”15 Ms. Jackson’s post came just days after a tape surfaced of President Trump 2 expressly bragging about sexually assaulting women. 3 4 5 6 87. Similarly, and for example, in the past, Secretary DeVos has provided substantial financial contributions—a form of speech—to FIRE, an organization that advocates for schools to abdicate their responsibility to address sexual violence and instead defer entirely to law 7 enforcement.16 It asserts that the 2011 Dear Colleague Letter “eviscerated due process rights of 8 students and faculty accused of sexual misconduct on campus.”17 FIRE has previously litigated 9 against the Department to weaken Title IX’s protections, including by arguing that the 10 11 12 13 14 preponderance of the evidence standard, which is used in nearly all civil matters, is unfair to the alleged perpetrator in a Title IX grievance proceeding. 88. Since they have assumed their current roles at the Department, Secretary DeVos’s and Ms. Jackson’s official actions and statements preceding the 2017 Title IX policy reveal their 15 discriminatory motivation. 16 89. 17 groups that oppose robust Title IX protections and have questioned the veracity of survivors’ For example, Secretary DeVos actively solicited the views of those individuals and 18 15 19 20 Annie Waldman, Pro Publica, DeVos Pick to Head Civil Rights Office Once Said She Faced Discrimination for Being White (Apr. 14, 2017), https://www.propublica.org/article/devoscandice-jackson-civil-rights-office-education-department. 16 21 22 23 24 25 26 Benjamin Wermund, DeVos’ Donations Spark Questions About Her Stance On Sexual Assault, Politico, Jan. 9, 2017, https://www.politico.com/story/2017/01/betsy-devos-educationsexual-assault-233376, Alex Morey, Baylor Rape Controversy More Evidence Colleges Unequipped to Decide Sexual Assault Cases, Found. for Individual Rights in Educ. (FIRE), Sept. 14, 2015, https://www.thefire.org/baylor-rape-controversy-more-evidence-colleges-unequippedto-decide-sexual-assault-cases/.; Robert Shibley, Time to Call the Cops: Title IX Has Failed Campus Sexual Assault, TIME, Dec. 1, 2014, http://time.com/3612667/campus-sexual-assaultuva-rape-titleix/ (FIRE’s senior vice president arguing that campus responses “encourage[ ] silence or the avoidance of law enforcement” in the wake of the Rolling Stone account of alleged rape at a fraternity house at the University of Virginia). 17 27 https://www.thefire.org/dear-colleague-its-over-education-department-rescinds-controversial2011-letter/. 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 26 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 27 of 45 1 experiences. Shortly after assuming her role as Secretary, Secretary DeVos met with State 2 Representative Earl Ehrhart from Georgia—a notorious opponent of Title IX—to discuss, among 3 4 5 6 other topics, Title IX enforcement.18 Representative Ehrhart has pushed a state bill that would require colleges to refer all sexual assault reports to the police, even against a victim’s expressed wishes, a dangerous policy that would discourage reporting by victims. He has also questioned 7 women’s credibility on the experience of sexual assault accusing one woman of “utilizing a 8 victim’s status” for ulterior motives.19 Similarly, during the summer of 2017, Secretary DeVos 9 met with the National Coalition for Men, an organization that has published photos of women 10 11 12 13 14 who have made complaints of rape, calling them “false victims.”20 This Coalition has referred to rape survivors as “anti-male.” 21 90. In contrast, only after repeated, collective requests from organizations representing the interests of sexual harassment and assault survivors did Secretary DeVos agree to meet with 15 them. Plaintiffs, along with other organizations that advocate for Title IX’s protections for sexual 16 assault survivors, sent Secretary DeVos a letter in April 2017 urging her to consider the views of 17 sexual assault survivors and groups dedicated to their rights, as opposed to biased and extreme 18 19 20 21 22 18 Kathryn Joyce, The Takedown of Title IX, N.Y. Times, Dec. 5, 2017, https://www.nytimes.com/2017/12/05/magazine/the-takedown-of-title-ix.html?_r=0 (“Ehrhart came away from his meeting gratified that DeVos seemed to agree with him on the limited role that federal authorities should play. ‘She’s placing this back where it belongs,’ he told me, ‘in the purview of the states.’”) 19 23 Letter from Nat’l Women’s Law Ctr, et al. to Elisbeth DeVos, Sec’y of Educ., Apr. 17, 2017, https://nwlc.org/wp-content/uploads/2017/04/April-17-2017-Letter-to-Secretary-DeVos.pdf. 24 20 25 26 27 Jessica Valenti, Why is Betsy DeVos enabling rape deniers?, The Guardian, July 14, 2017, https://www.theguardian.com/commentisfree/2017/jul/14/betsy-devos-accused-rapists-meetingssexual-assault. 21 Tyler Kingkade, These Democratic Senators Are Blasting Betsy DeVos For Her Approach To Campus Rape, Buzzfeed, July 12, 2017, https://www.buzzfeed.com/tylerkingkade/thesedemocratic-senators-are-blasting-betsy-devos-for-her?utm_term=.sd2GyLb3M#.lvOz57wgB. 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 27 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 28 of 45 1 views, such as those held by Mr. Ehrhart.22 While Department decisionmakers did eventually 2 meet with SurvJustice and others representing the views of sexual violence survivors, one 3 4 5 6 survivors’ rights group, Know Your IX, was disinvited after its co-founders published an op-ed critical of the Office for Civil Rights. 91. Although Title IX affords protections to all victims of discriminatory conduct on the 7 basis of sex, Secretary DeVos and Ms. Jackson’s statements have criticized the protections that 8 civil rights laws, such as Title IX, afford to women, continuing to base their statements on 9 stereotypes about college women and women who are survivors of sexual harassment, including 10 11 12 13 14 15 sexual assault. 92. In a July 2017 article in the New York Times, in which Ms. Jackson was quoted, she publicly propounded discriminatory stereotypes of women who survive sexual assault. Regarding investigations conducted by schools and universities to identify and remedy unlawful sexual violence and other forms of harassment, she stated: 16 [In most investigations there’s] not even an accusation that these accused students overrode the will of a young woman. Rather, 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 investigation because she just decided that our last sleeping together was not quite right.’23 17 18 19 20 93. 21 including sexual violence, at George Mason University. In her remarks, she cited a number of 22 23 In September 2017, Secretary DeVos gave a speech on campus sexual harassment, examples where students, particularly male students accused of sexual violence, were allegedly treated unfairly by their schools. She used these examples to justify rescinding the 2011 Dear 24 22 25 26 27 Letter from Nat’l Women’s Law Ctr, et al., supra note 19. 23 Erica L. Green & Sheryl Gay Stolberg, Policies Get a New Look as the Accused Get DeVos’s Ear, N.Y. Times, July 13, 2017 (emphasis added), https://www.nytimes.com/2017/07/12/us/politics/campus-rape-betsy-devos-title-iv-educationtrump-candice-jackson.html. 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 28 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 29 of 45 1 Colleague Letter and 2014 Q&A.24 Yet these anecdotes involve problems that arose because 2 schools did not follow the then-existing guidance, and therefore do not support rescission of that 3 4 5 6 guidance. Moreover, many of the anecdotes used by Secretary DeVos in her speech were misleading and/or untrue, in that they recounted supposed facts that the parties to the incident disputed. 7 94. 8 faced by sexual violence survivors and the harm faced by individuals who have been falsely 9 accused, despite a lack of evidence that the latter is a widespread problem extending beyond a 10 few occurrences, unlike the former.25 Rather than recognizing that false accusations are rare, 11 12 13 14 Secretary DeVos’s September 2017 speech presented as equally problematic the harm Secretary DeVos presented the problem of false accusations as rampant. On the contrary, research shows that the prevalence of false allegations of sexual assault is very low—false accusations regarding criminal sexual assault, for example, are estimated at 2-10 percent.26 15 95. Secretary DeVos also asserted that the loss of due process protections for alleged 16 perpetrators is a widespread problem on school campuses, mentioning “due process” ten times 17 during the speech. She also claimed that “the system established by the prior administration” was 18 responsible for creating “victims of a lack of due process”.27 19 20 21 22 23 24 25 26 27 24 See Elisabeth DeVos, Sec’y of the U.S. Dep’t of Educ., Remarks on Title IX Enforcement at George Mason University (Sept. 7, 2017), https://www.ed.gov/news/speeches/secretary-devosprepared-remarks-title-ix-enforcement (“DeVos Remarks”). 25 See DeVos Remarks. 26 David Lisak, et al., False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases, 16(12) Violence Against Women 1318, 1330 (2010), https://icdv.idaho.gov/ conference/handouts/False-Allegations.pdf. 27 DeVos Remarks. 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 29 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 30 of 45 1 96. 2 saying, “[I]f everything is harassment, then nothing is.”28 This statement, among other things, 3 4 5 6 Secretary DeVos also expressed doubt about the seriousness of sexual harassment claims, minimizes the full range of sexual harassment and its impact on women and girls, including deprivation of their access to education. 97. Secretary DeVos’s and Ms. Jackson’s statements are consistent with and reveal their 7 discriminatory belief, based on gender stereotypes, that many girls and women who report sexual 8 harassment misunderstood a harmless romantic advance and that those who report sexual 9 violence often are either lying or have regret about a consensual sexual encounter. 10 11 12 13 14 98. Other politically appointed Department of Education officials have similar doubts about the veracity of sexual harassment and violence claims. For example, Adam Kissel, Deputy Assistant Secretary for Higher Education Programs, has criticized affirmative consent policies adopted on college campuses through his Twitter accounting, stating in February 2017 that “The 15 new OCR [Office of Civil Rights, Department of Education] will start to fix this.” Mr. Kissel 16 has also criticized the “preponderance of evidence” standard because it will lead, in his view, to 17 “more guilty verdicts,” apparently referring to campus findings of responsibility. He has also 18 criticized antidiscrimination policies preventing sexual harassment. 19 20 21 22 99. This discriminatory mindset has not only motivated decisionmakers at the Department, it flows from the top of the Executive Branch. President Trump’s actions and statements reveal his discriminatory and stereotyped views of women, and particularly women’s veracity regarding 23 claims of sexual harassment, including violence. For example, during his campaign for President, 24 Donald Trump called women who have made accusations of sexual harassment and assault 25 against him “phony accusers” who have made such reports to get “some free fame.” He has 26 27 28 DeVos Remarks. 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 30 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 31 of 45 1 called sexual harassment reports against him by women “a total setup” and the women who 2 made those reports, “horrible.”29 3 4 5 6 100. Mr. Trump has bragged about sexually assaulting women on audiotape, but continues to deny the experiences of women and girls who have experienced sexual assault. He asserted that “every woman lied when they came forward…” regarding alleged sexual harassment by him, and 7 that all of the women “liars will be sued after the election is over.” 30 8 101. 9 House policy, as the White House has asserted in an official statement that at least 16 women 10 11 12 13 14 This discriminatory and stereotyped view of women and girls has become formal White who had accused the President of sexual harassment were lying.31 102. The Administration’s disbelief of women and girls and disregard for gender-based violence is also evident from the employment of multiple White House staff members who have been accused of abusing their female partners. It has been widely reported that now-former 15 White House staff secretary Rob Porter was elevated within the White House despite law 16 enforcement investigations concerning multiple reports of his abuse of women.32 After the 17 reports of Mr. Porter’s abuse were made public, President Trump has defended Mr. Porter, and 18 19 20 21 22 23 24 25 26 27 29 Ryan T. Beckwith, Read Donald Trump’s Speech Attacking His Accusers, TIME, Oct. 14, 2016, http://time.com/4532181/donald-trump-north-carolina-accusers-speech-transcript/. 30 Ben Jacobs, Trump Uses Gettysburg Address to Threaten to Sue Sex Assault Accusers, The Guardian, Oct. 22, 2016, https://www.theguardian.com/us-news/2016/oct/22/donald-trumpgettysburg-contract-with-america-sue-accusers-hillary-clinton. 31 John Wagner, All of the Women Who Have Accused Trump of Sexual Harassment Are Lying, the White House Says, Wash. Post, Oct. 27, 2017, https://www.washingtonpost.com/news/postpolitics/wp/2017/10/27/all-of-the-women-who-have-accused-trump-of-sexual-harassment-arelying-the-white-house-says/?utm_term=.79b67a7a3a2b. 32 Mr. Porter’s reported abuse of women is well documented; in 2010, a court issued a protective order against him, finding “reasonable grounds” to believe that Mr. Porter committed domestic abuse towards his wife at the time, Jennifer Willoughby, and “probable danger” of the abuse occurring. Reports and evidence concerning Mr. Porter’s abuse of women are among the things that prevented Mr. Porter from obtaining a permanent security clearance. 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 31 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 32 of 45 1 White House Chief of Staff John Kelly stated that Mr. Porter is a man of “integrity.” Mr. 2 Porter’s resignation was followed by the resignation of another senior White House official, 3 4 5 6 David Sorensen, who also has been accused of gender-based violence. 103. Following these resignations, Mr. Trump issued a statement in the form of a tweet: “Peoples [sic] lives are being shattered and destroyed by a mere allegation,” he wrote. 7 “There is no recovery for someone falsely accused—life and career are gone. Is there no 8 such thing any longer as Due Process?” 33 9 104. 10 11 The Trump Administration’s animus towards women gives license to and encourages Executive branch decisionmakers who share the same discriminatory views to perpetuate those views in their work. 12 13 14 15 16 17 18 2017 Title IX Policy 105. On September 22, 2017, the Department issued a new Dear Colleague Letter (“2017 Dear Colleague Letter”), rescinding the 2011 Dear Colleague Letter and 2014 Q&A.34 The 2017 Dear Colleague Letter also provides new information about how the Department will assess an educational institution’s compliance with Title IX through a set of Questions and Answers.35 19 Together, these documents set forth the Department’s revised Title IX policy (“2017 Title IX 20 policy”). 21 106. 22 The 2017 Title IX policy departs dramatically from the 2011 and 2014 guidance documents. The 2017 Title IX policy does not simply rescind the 2011 Dear Colleague Letter 23 24 25 26 27 33 Donald Trump (@realDonaldTrump), Twitter (Feb. 10, 2018), https://twitter.com/ realDonaldTrump/status/962348831789797381. 34 See 2017 Dear Colleague Letter. 35 See 2017 Q&A. 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 32 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 33 of 45 1 and 2014 Q&A. Instead, it affirmatively contradicts Department policies that the 2017 Title IX 2 policy supposedly kept in effect, including the 2001 Guidance. 3 4 5 6 7 8 9 10 11 107. The 2017 Title IX policy, among other changes from existing law, imposes the following requirements on schools that weaken protections for sexual harassment survivors: • prohibits educational institutions from issuing interim measures that minimize the burden on complainants to modify their work and class schedules or housing assignments, thereby increasing the risk that survivors of sexual harassment are isolated from their support networks in the aftermath of their experience, see 2017 Q&A at 3; • requires educational institutions issuing interim measures to provide such 12 measures to both parties thereby placing the burden on the complainant of sexual harassment to 13 modify their access to education, and in turn increasing the risk that survivors of sexual 14 15 16 17 harassment are isolated from their support networks in the aftermath of their experience and impeded in their ongoing access to educational benefits and opportunities, see id.; • requires educational institutions to consider the impact on a perpetrator’s access 18 to education, even after finding the individual responsible for sexual harassment or violence, in 19 reaching a decision on sanctions, id. at 6; 20 21 22 • eliminates the requirement that educational institutions consider the effect of off- campus conduct that does not involve a program or activity of the institution in determining whether there is a hostile environment, id. at 1, n. 3. 23 24 • eliminates the requirement that educational institutions provide appellate rights to 25 both parties, if they are provided at all, and instead permits institutions to provide appellate rights 26 only to the alleged perpetrator, id. at 6-7; 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 33 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 34 of 45 • 1 2 3 of sexual harassment, including sexual violence from further harassment or violence during the investigation into their complaint, see at 2-3; 4 • 5 6 permits educational institutions not to provide interim measures to protect victims does not require educational institutions to timely resolve reports of sexual harassment, including sexual violence, id. at 3; • 7 permits educational institutions to resolve claims of sexual assault through 8 mediation if both parties consent, notwithstanding, among other concerns, the likelihood that 9 mediation may retraumatize the victim, see id. at 4; 10 11 12 13 • permits educational institutions to use the “clear and convincing evidence” burden of proof in adjudicating claims of sexual harassment, including sexual violence, rather than the equitable standard of “preponderance of evidence,” id. at 5; • 14 eliminates the caution against educational institutions relying on criminal 15 investigations as a substitute for their own independent investigations and determinations 16 regarding complaints of sexual harassment, including sexual violence, cf. 2014 Q&A at 27; 17 18 19 • eliminates the prohibition on permitting an alleged perpetrator to question a complainant’s sexual history with individuals other than the alleged perpetrator, cf. id. at 31; • 20 eliminates the prohibition on educational institutions treating a current or previous 21 consensual dating or sexual relationship between parties as implying consent or precluding a 22 filing of sexual violence, cf. id. at 31; 23 24 25 • fails to provide instructions on how to respond when a complainant requests confidentiality or requests that no investigation or disciplinary action be pursued, cf. id. at 18-22; and 26 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 34 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 35 of 45 • 1 2 3 eliminates the strong discouragement to educational institutions from permitting alleged perpetrators to directly cross-examine complainants to avoid the perpetuation of a hostile environment, cf. id. 4 5 108. 6 including the expectations outlined in the longstanding 2001 Guidance, which (unlike the 2017 7 8 9 10 The 2017 Title IX policy definitively changes expectations for recipient institutions, Title IX policy) was the product of notice and comment procedures and remains in effect. For example, the 2001 Guidance stated that in “alleged sexual violence, mediation will not be appropriate even on a voluntary basis,” 2001 Guidance at 21, while the 2017 Title IX policy 11 permits explicitly mediation in all cases where the parties consent. 2017 Q&A at 4. 12 109. 13 institutions that are inconsistent with the statutory text of Title IX and its implementing 14 15 The 2017 Title IX policy also sets forth expectations and mandates on educational regulations, including, but not limited to, the following: providing for one-sided appellate rights favoring the accused; permitting schools to adopt a higher burden of proof—clear and 16 17 18 convincing evidence—for adjudicating complaints of sexual harassment, including sexual violence; considering the impact that particular sanctions would have on a perpetrator’s access to 19 education after being found responsible for sexual harassment, including sexual violence, under 20 Title IX; and departing from prior policy requiring interim measures be issued to promptly 21 remedy the hostile environment for the complainant of sexual harassment. 22 23 24 110. Ironically, Defendants issued the 2017 Title IX policy and rescinded the 2011 and 2014 guidance documents without any opportunity for public notice and comment on the new policy 25 26 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 35 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 36 of 45 1 despite stating that the “era of rule by letter is over.” 36 The Department stated that it would “craft 2 a new Title IX regulation” after a period of notice and comment.37 Yet, in the five months that 3 4 5 6 have passed, the Department has not done so. 111. In promulgating the 2017 Title IX policy, Defendants deviated from normal administrative processes and failed to provide reasoned justifications for the abrupt reversal in 7 policy—and frequently failed to acknowledge the reversal in policy. 8 112. 9 Dear Colleague letter makes several claims about the effects of the rescinded guidance, stating, 10 11 12 13 14 The 2017 Title IX policy also relies on errors of fact and law. Among these, the 2017 for example, that it had “led to the deprivation of rights for many students—both the accused students denied fair process and victims denied an adequate resolution of their complaints.” 2017 Dear Colleague Letter at 1-2. On the contrary, the prior policy did not require schools to limit due process or basic fairness protections for alleged perpetrators. While there are anecdotes of 15 schools making errors in providing these procedural protections, such errors were neither 16 required by, nor the result of, the 2011 and 2014 guidance documents. 17 113. 18 on educational institutions to respond to complaints of sexual harassment and the protections it 19 20 21 22 The 2011 and 2014 guidance documents clarified the requirements that Title IX imposes requires for complainants. As such, they empowered students to make complaints of sexual harassment, including sexual violence through campus complaint processes. The 2017 Title IX policy does not acknowledge or otherwise account for the reliance interests that students, or 23 organizations that work with students, have in these protections. A student who filed a complaint 24 regarding sexual violence before the issuance of the 2017 Title IX policy would have been 25 36 26 27 Press Release, U.S. Dep’t of Educ., Dep’t of Educ. Issues New Interim Guidance on Campus Sexual Misconduct, (Sept. 22, 2017), https://www.ed.gov/news/press-releases/departmenteducation-issues-new-interim-guidance-campus-sexual-misconduct. 37 Id. 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 36 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 37 of 45 1 assured that her educational institution should resolve the investigation within about sixty days, 2 and among other protections, she would not be cross-examined by the person who allegedly 3 4 5 6 assaulted her. For those students whose complaints were pending in the fall of 2017, no such assurances remain. 114. Furthermore, the 2017 Title IX policy’s retrenchment on Title IX protections for victims 7 of sexual harassment, including sexual violence, in educational institutions is motivated by 8 stereotypical assumptions and overbroad generalizations about girls and women. Specifically, 9 decisionmakers at the Department hold the discriminatory views, as evidenced by Secretary 10 11 12 13 14 DeVos’s and Ms. Jackson’s statements, that (1) many girls and women who report sexual harassment, including sexual violence, have misunderstood a harmless romantic advance and (2) most girls and women who report sexual violence either are lying or have regret about a consensual sexual encounter. 15 16 17 18 The Devastating Effects of the Department’s 2017 Title IX Policy 115. The 2017 Title IX policy curtails important protections against sexual harassment. This rollback has had devastating effects on students’ equal access to educational opportunity, which 19 is all too often thwarted on the basis of their sex. 20 116. 21 their intention to modify their practices. For example, in the weeks following the issuance of the 22 23 Following the issuance of the 2017 Title IX policy, schools have modified and/or stated 2017 Title IX policy, the South Dakota Board of Regents proposed “emergency revisions” to its Title IX policy that “were required to comply with the Interim Guidance [i.e., 2017 Title IX 24 25 policy] issued on September 22, 2017.”38 The Board identified “revisions … to comply with the 26 38 27 South Dakota Board of Regents, Minutes of the Meeting, Oct. 3-5, 2017, at 20, https://www.sdbor.edu/the-board/minutes/Documents/BOR_Minutes_102017.pdf 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 37 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 38 of 45 1 requirements contained in the Interim Guidance.”39 It ultimately made a host of changes to its 2 policy to “align with” and “follow[]” the Interim Guidance. 40 The changes made by South 3 4 5 6 Dakota Board of Regents include, among others, modifications to its policy on interim measures, sanctions, and mediation to “explicitly incorporate language contained in the interim guidance.”41 As another example, following issuance of the 2017 Title IX policy and after the 7 Department closed an investigation into the handling of campus sexual violence at the University 8 of Houston, the university’s spokesman stated that, in light of the current guidance, the 9 university may make some changes to how it adjudicates sexual misconduct violations to “better 10 11 12 13 align with the [Department of Education’s] expectations to how we ensure due process.”42 In addition, the University of Michigan has changed its Title IX policy to adopt the option of mediation between an accused student and a survivor in cases of sexual assault. This new 14 15 16 17 18 19 20 21 22 23 24 25 26 27 39 South Dakota Board of Regents, Title IX Interim Guidance, Oct. 3-5, 2017, at 1, https://www.sdbor.edu/theboard/agendaitems/2014AgendaItems/2017%20Agenda%20Items/October0317/5_O_BOR1017. pdf. 40 South Dakota Board of Regents, Minutes of the Meeting, Dec. 5-7, 2017, at 30, https://www.sdbor.edu/the-board/minutes/Documents/BOR_Minutes_1217_DRAFT.pdf 41 South Dakota Board of Regents, Title IX Interim Guidance, Revisions to Board Policies, Dec. 5-7, 2017, at 1, https://www.sdbor.edu/theboard/agendaitems/2014AgendaItems/2017%20Agenda%20Items/December17/7_E_BOR1217_ REVISED.pdf; see also Danielle Ferguson, South Dakota Board of Regents Passes Interim Title IX Sexual Assault Guidelines, Argus Leader, Dec. 7, 2017, http://www.argusleader.com/ story/news/2017/12/07/regents-pass-interim-title-ix-sexual-assault-guidelines/926445001/ (South Dakota State University vice president of student affairs stating that some of the changes were “substantive” but claiming that “most aren’t”). 42 Lindsay Ellis, Feds Close Title IX Investigation Into University of Houston, Chron, Oct. 4, 2017, http://www.chron.com/local/education/campus-chronicles/article/Feds-close-Title-IXinvestigation-into-University-12253555.php. 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 38 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 39 of 45 1 University of Michigan policy resulted from the Title IX policy change.43 Other universities are 2 following suit either in policy and/or in practice by recommending mediation in cases of sexual 3 4 5 6 assault. 117. Following the issuance of the 2017 Title IX policy, universities have also changed their policies in such a way that could delay resolution of reports of sexual misconduct, including 7 sexual assault.44 8 118. 9 and limit its ongoing investigations and analysis of University responses to reports of sexual 10 11 12 13 14 15 Following the issuance of the 2017 Title IX policy, the Department has begun to modify misconduct, including sexual violence, to conform to the new Title IX policy. 119. Following the issuance of the 2017 Title IX policy, numerous individuals who have been the subject of sexual violence or harassment have expressed a hesitance or unwillingness to report their incidents to their school authorities, citing the Department’s 2017 Title IX policy as the reason for their hesitation or unwillingness. 16 17 18 19 20 21 22 23 24 25 26 27 43 Jeremy Bauer-Wolf, Mediating Sexual Assault, Inside Higher Ed, Feb. 20, 2018, https://www.insidehighered.com/news/2018/02/20/university-michigan-will-now-allowmediation-some-sexual-assault-cases; Rick Fitzgerald, U-M Revises Student Sexual and GenderBased Misconduct Policy, The Univ. Record, Feb. 1, 2018, https://record.umich.edu/articles/um-revises-student-sexual-gender-based-misconduct-policy (University of Michigan Public Affairs Office explains that “[t]he change [regarding mediation] also reflects the most recent guidance from the U.S. Department of Education's Office for Civil Rights.”). 44 Press Release, Grand Valley State Univ., Update on the Impact of Interim Q&A Related to Title IX (Oct. 2, 2017), https://www.gvsu.edu/inclusion/module-newsview.htm?storyId=B4C32E26-0CC1-44BC-CCF964C4D07C10C3&siteModuleId=6D5DCE61CC95-4B12-A9C94F3632A6F3DD (Grand Valley State University announcing it will remove its 60-day time frame for investigations.); Kara Coleman, Auburn University Re-Evaluating Title IX Policies and Procedures, Feb. 9, 2018, www.oanow.com/news/auburnuniversity/auburnuniversity-re-evaluating-title-ix-policies-and-procedures/article_16b90e14-ecf7-507c-a39085c0ad88e538.html (Auburn University removed its 60-day time frame sometime “before Christmas” and now allows for “reasonable time,” which can be “three or four months.”). 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 39 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 40 of 45 1 120. 2 women and girls, among other populations that are disproportionately likely to be targeted for 3 4 5 6 These devastating consequences have overwhelmingly and disproportionately harmed sexual harassment and violence. 121. As outlined more fully in paragraphs 10-34, the consequences of the Department’s 2017 Title IX policy have harmed and continue to harm Plaintiffs. Indeed, Plaintiffs are organizations 7 that assist and counsel survivors of sexual harassment, including sexual violence. As a result of 8 the chilling effect that the Department’s change in policy has had and continues to have on 9 reporting sexual assault and other forms of sexual harassment, Plaintiffs are unable to meet their 10 missions of serving survivors of sexual violence and other forms of sexual harassment. Further, 11 12 13 14 Plaintiffs have had to expend resources over and above normal levels to combat underreporting that has resulted from the Department’s change in policy, causing a diversion of resources away from their other core programmatic activities. 15 122. 16 over and above their normal levels to combat confusion among survivors and educational 17 institutions and to educate both on the requirements of Title IX’s antidiscrimination provisions. 18 These resource expenditures have taken away from Plaintiffs’ other core programmatic activities, 19 The effects of the 2017 Title IX policy have also required Plaintiffs to expend resources causing a diversion of resources. 20 21 22 23 24 25 26 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 40 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 41 of 45 1 Claims for Relief 2 Count One (Violation of the Administrative Procedure Act, 5 U.S.C. § 706) 3 4 5 6 123. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth herein. 124. The Administrative Procedure Act (“APA”) empowers this Court to set aside agency 7 action that is arbitrary, capricious, or contrary to law. It also requires an agency to provide a 8 sufficient explanation for its actions and to set aside actions and empowers this Court to set aside 9 actions that were undertaken without observance of procedure required by law. 10 11 12 13 14 125. The 2017 Title IX policy is the Department’s current policy for interpreting and enforcing Title IX; it contains expectations and mandates for recipients that represents a shift away from prior policy. Although labeled as interim, the 2017 Title IX policy is final agency action for the purposes of the APA because it represents a conclusive shift in Department policy 15 that governs the enforcement and interpretation of Title IX and it has no definite termination 16 date. 17 126. 18 19 By issuing the 2017 Title IX policy, the Defendants have adopted a policy that is arbitrary, capricious, and contrary to law. 127. Among other particulars, the 2017 Title IX policy arbitrarily and without reasoned 20 21 22 explanation eliminates protections designed to prevent a discriminatory educational environment. It does so, for example, by permitting the use of mediation to resolve claims of sexual assault, 23 which is not only arbitrary and unexplained, but also directly contradicts the Department’s 2001 24 Guidance. It also fails to consider the reliance interests that students have in the continuation of 25 those protections. 26 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 41 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 42 of 45 1 128. 2 cases even acknowledge, its departure from prior guidance documents and other Department 3 4 5 6 In addition, the 2017 Title IX policy fails to articulate an adequate reason for, or in some interpretations of Title IX and its implementing regulations, including the 2014 Q&A, 2011 Dear Colleague Letter, and 2001 Guidance. 129. Defendants’ proffered explanation for issuing the 2017 Title IX policy is based upon 7 mistakes of fact and law. 8 130. 9 Title IX policy without following the procedures required by law. 10 11 131. Defendants also acted in an arbitrary and capricious manner by implementing their 2017 As a result of Defendants’ unlawful actions, Plaintiffs have been harmed and their missions frustrated, as outlined more fully in paragraphs 10-34 above. 12 13 Count Two (Ultra Vires Action) 14 15 132. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth herein. 16 133. This Court has the power to set aside actions by the Executive Branch that are ultra vires 17 (i.e., without legal authority). 18 19 134. In adopting the 2017 Title IX policy and permitting recipients of federal funding to adopt policies that disadvantage victims of sexual harassment, including sexual violence, and benefit 20 21 22 23 the alleged perpetrators, such as by permitting educational institutions to provide one-sided appellate rights, and in considering factors unrelated to Title IX’s mandate in doing so, Defendants have acted in excess of their legal authority. 24 25 26 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 42 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 43 of 45 Count Three (Violation of the Equal Protection Guarantee of the Fifth Amendment) 1 2 135. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth herein. 4 136. The Due Process Clause of the Fifth Amendment to the United States Constitution 5 forbids the federal government from denying equal protection of the laws, including by 6 discriminating on the basis of sex. 3 7 8 9 10 137. In issuing the 2017 Title IX policy, Defendants were motivated, at least in part, by their discriminatory—and baseless—gender stereotype that many women and girls lack credibility with regard to sexual harassment. Such stereotype includes the perception that women and girls 11 who report sexual harassment misunderstood a harmless romantic advance and that those who 12 report sexual violence often are either lying or have regret about a consensual sexual encounter. 13 138. 14 circumstances under which the 2017 Title IX policy change was issued, further demonstrate that 15 16 17 18 The statements and actions of Secretary DeVos and Ms. Jackson, as well as the Defendants issued the 2017 Title IX policy knowing it would have a disparate impact on women, who constitute the overwhelming majority of sexual harassment and assault survivors, by reducing federal protections for victims of sexual harassment and assault. They took this action 19 not despite this impact on women, but because of it. 20 139. 21 as evidenced by contemporary statements, departing from normal agency processes, acting with 22 23 Defendants, in issuing the 2017 Title IX policy based on gender stereotyped assumptions, the knowledge that the policy would disproportionately impact female students, and motivated by that disproportionate impact, discriminated on the basis of sex in violation of the Due Process 24 25 26 27 Clause of the Fifth Amendment. 140. As a result of Defendants’ unlawful actions, Plaintiffs have been harmed and their missions frustrated, as outlined more fully in paragraphs 10-34 above. 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 43 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 44 of 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 WHEREFORE, Plaintiffs pray that this Court: 1. Declare the Dear Colleague Letter and the Q&A issued in September 2017 unlawful; 2. Issue an injunction ordering Defendants to vacate the Dear Colleague Letter and the Q&A issued in September 2017; 3. Award Plaintiffs costs, attorneys’ fees, and other disbursements for this action; and 4. Grant any other relief this Court deems appropriate. DEMAND FOR JURY TRIAL. Respectfully submitted, Date: February 21, 2018 /s/ Alice Abrokwa Alice Y. Abrokwa* Leecia Welch (CA Bar No. 208741) National Center for Youth Law 405 14th Street, 15th Floor Oakland, CA 94612, and 1313 L Street, NW, Suite 130 Washington, DC 20005 Ph: (510) 835-8098 Fax: (510) 835-8099 Emails: lwelch@youthlaw.org, aabrokwa@youthlaw.org Jennifer A. Reisch (CA Bar No. 223671) Equal Rights Advocates 1170 Market Street, Suite 700 San Francisco, CA 94102 Ph: (415) 896-0672 Fax: (415) 231-0011 Email: jreish@equalrightsadvocates.org Javier M. Guzman* Skye L. Perryman* Robin Thurston* Karianne Jones* Democracy Forward Foundation 1333 H St. NW Washington, DC 20005 Ph: (202) 448-9090 Fax: (202) 701-1775 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 44 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 45 of 45 1 2 3 4 5 6 7 8 9 10 11 Emails: jguzman@democracyforward.org, sperryman@democracyforward.org, rthurston@democracyforward.org, kjones@democracyforward.org Emily Martin* Neena Chaudhry* Sunu Chandy* Alexandra Brodsky* National Women’s Law Center 11 Dupont Circle, NW, Suite 800 Washington, DC 20036 Ph: (202) 588-5180 Fax: (202) 588-5185 Emails: emartin@nwlc.org, nchaudhry@nwlc.org, etang@nwlc.org, schandy@nwlc.org, abrodsky@nwlc.org *pro hac vice motions filed or forthcoming Counsel for Plaintiffs 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Amended Complaint for Injunctive Relief; Case No.: 3:18-cv-00535-JSC Page: 45