A national lawsuit challenging the Trump Administration’s rollback of guidelines governing sexual harassment cases on college and school campuses was heard by a U.S. District Court judge in San Francisco on Thursday.
While the Obama-era policy previously required the lowest standard of proof when judging such cases under Title IX, the U.S. Education Department rescinded that guidance last September over concerns that it denied accusers due process, and now requires “clear and convincing” evidence.
Judge Jacqueline Scott Corley requested more evidence Thursday on the constitutionality of a challenge to the Trump Administration’s rollback of the 2011 policy guiding educational institutions in their handling of sexual violence and harassment cases.
Arguing against the government’s motion to dismiss the case, civil rights advocacy groups who filed the lawsuit in January said they hope to reinstate what they said are “critical protections” for young survivors. They also aimed to address “misguided assumptions” underlying the policy, which they said was motivated by sex discrimination.
The advocates said that the administration revealed it’s bias with statements made by high-ranking education officials that placed the blame for sexual violence on women.
“President Trump has publicly bragged about sexually assaulting women and at a recent rally he mocked the me too movement,” said Charisma Troiano, a spokesperson for Democracy Forward, one of the groups that filed the suit.
“The Trump administration has also made false claims about how schools handle sex assault cases, with senior Department of Education officials stating that 90 percent of reported sexual assaults are likely just misunderstandings or ‘morning after’ regrets,” she said.
That comment was made last year by Candice Jackson, the head of the federal civil rights office who is listed in the suit along with Education Secretary Betsy DeVos.
Representing the federal government, Attorney Steven Myers said that the group’s claims did not prove actual intent on the part of Jackson to discriminate against women.
The government also argued that the new policies benefit civil rights organizations that are suing.
Corley deferred making a decision and asked for further evidence to prove that the policy was based on discrimination. A ruling is expected in the coming months, according to attorney Robin Thurston.
“What we argued is that the new policy clearly removes a lot of protection for survivors of sexual violence. They are no longer required to get the kind of interim measures that make it so that they don’t have to go to classes with their rapists. That is now discretionary,” said Thurston, adding that removal of those requirements means that the policy does not meet the “final” legal requirement.
In court, Thurston also argued that the policy change had a chilling effect on survivors in reporting sex crimes.
Rather than letting both sides appeal an investigation of an alleged assault or harassment, the new guidelines give this right only to the accused party.
Jennifer Reisch, legal director of Equal Rights Advocates, said that the new guidelines also “eliminate time frames for resolving complaints,” resulting in investigations “going on indefinitely,with no resolution for either party.”
At a press conference following the hearing, Amelia Wagoner, a student survivor, shared her experience with navigating Humboldt State University’s processes under the new policies after she was sexually assaulted by a student athlete last October.
“Even after he was notified that he was being investigated I wasn’t offered any protection,” said Wagoner. “I just wanted to go to class, go to practice and feel safe but I couldn’t.”
Wagoner said that a month into the investigation, both she and her assailant received a mutual ‘no contact’ order, meaning that they could be reprimanded for verbal or physical contact.
“If I accidentally showed up at the same place as him and I didn’t know, I could be punished,” she said. “At the same time I needed protection from two of his friends who were threatening me on social media. So it became three ‘no contact’ orders against people I had never even met.”
When an investigation by the university substantiated Wagoner’s claims against her accuser in February, he appealed the decision immediately, reopening the case, said Wagoner.
Reisch said that the new policies send a message to students reporting sexual harassment and violence that “ you come forward at your peril.”
“You will be subject to an indefinite investigation, you are going to potentially be subject to a system that will allow the responding student to appeal even if you’re not allowed to appeal,” she said.
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