Washington, D.C. — Independent Women’s Law Center (“IWLC”), the Foundation for Individual Rights in Education (“FIRE”), and Speech First filed a petition on Tuesday in the U.S. District Court for the District of Massachusetts, asking to participate in litigation surrounding the Department of Education’s new Title IX regulations.
The petition aims to defend the free speech and due process protections in the Department’s new Title IX rules from a lawsuit filed by the Victim Rights Law Center. Should the Victim Rights Law Center’s challenge succeed, these protections will not go into effect.
On May 6, 2020, the Department of Education announced that it would issue a final rule imposing certain obligations on colleges and universities under Title IX.
One key provision is the rule’s definition of the kind of “sexual harassment” that Title IX requires schools to investigate and punish. Among other things, the rule defines “sexual harassment” to include “[u]nwelcome conduct [as] determined by a reasonable person” that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” This definition is drawn from the Supreme Court’s decision in Davis v. Monroe County Board of Education. Any more permissive definition would infringe upon the First Amendment rights of students attending public schools.
Another key provision requires schools to provide timely and specific notice of allegations, a neutral decision-maker, live hearings, and the right to cross-examination. Plaintiffs argue that these provisions are discriminatory. In fact, with respect to public universities, such policies are required by the Due Process Clause of the 14th Amendment.
As Nicole Neily, president of Speech First, explained, “Over the past decade, the definition of ‘discrimination’ has expanded on campus to encompass constitutionally-protected expression – creating a climate of fear and suspicion on campus and destroying students’ appreciation for the traditions of fairness upon which this country was built.”
Jennifer C. Braceras, director of Independent Women’s Law Center, added, “Our coalition seeks to intervene in this case to advance an argument not made by the Department: that aspects of the new rule are not just good policy, they are constitutionally required.”
Cameron Norris of Consovoy McCarthy represents IWLC and Speech First in this matter.
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