Women’s rights activists and student plaintiffs sued the US Department of Education and Secretary Betsy DeVos on Thursday in what appears to be the country’s first legal challenge to the government’s pending policy change on campus assault cases.
The case, filed in US District Court in Boston, challenges DeVos’s decision to rewrite guidance for how colleges adjudicate rape and harassment claims and contends she is violating Title IX, the education law that guards against gender discrimination in schools.
“Ironically, we have the secretary of education issuing discriminatory rules that apply only to violence against women and subject only victims of sex-based harm to second-class treatment on college campuses,” said attorney Wendy Murphy, outside the courthouse after filing the suit. “That is unconscionable, it is unacceptable, it is unconstitutional.”
But the suit was greeted with deep skepticism by other experts in the field.
Attorney Ruth O’Meara-Costello, who defends those accused of sexual assault, called the lawsuit “incoherent.”
She said it misconstrues DeVos’s policy change to assert that sexual assault claims will now face a more onerous burden of proof than other types of cases.
“That just isn’t true,” O’Meara-Costello said.
Instead, O’Meara-Costello said, the “Q&A on Campus Sexual Misconduct” that DeVos issued last month specifically called for a consistent standard of evidence. It was the Obama administration that previously required campus sexual assault claims to be heard using the weakest burden of proof — one that was sometimes lower than the standard used to adjudicate other types of violations, she said.
The change in campus sexual assault policy DeVos announced last month has been a particularly heated cultural flashpoint for women who see a rollback of protections and rights under President Trump, who was himself accused of sexual assault and who was famously captured on video bragging about grabbing women’s genitals. The administration also recently reversed the mandate that made birth control coverage standard preventative care, available without copayments, under most health insurance plans.
“In the women’s movement, we’ve come to expect nothing,” said Kamala Lopez, an actress who made the 2016 documentary “Equal Means Equal” and who leads a women’s initiative by the same name that is pushing for an Equal Rights Amendment.
“We’re headed to ‘Handmaid’s Tale’ territory,” Lopez added, citing the dystopian Margaret Atwood novel that imagined a society where women are valued only for their fertility.
Along with Equal Means Equal, the plaintiffs in the suit include three unnamed students whose assault claims spurred federal investigations of their universities.
One of the students, identified only as “Susan Doe,” spoke to reporters outside the courthouse, saying she was forced to leave the School of the Art Institute of Chicago after being abused by her direct adviser.
The 25-year-old graduate student, who is from the Boston area and has since transferred to a school here, said she wants to see accountability not only for the man who assaulted her, but also for her school, which she said did not handle her case appropriately.
A second plaintiff is involved in a case against Stonehill College in Easton, and a third was a Boston University student who has an ongoing Suffolk Superior Court case regarding a campus assault, the suit says.
The legal dispute centers on the particulars of the campus guidance handed down in a 2011 letter by the Obama administration requiring colleges to investigate all claims of sexual misconduct under the threat of loss of federal funds.
Women’s advocates thought that the move heralded a change in campus “rape culture” and that victims’ stories could no longer being swept under the rug or discouraged by campus officials leery of bad publicity.
In the intervening years, however, numerous men claimed that they were wrongly accused of sexual transgressions and that campus judicial proceedings were stacked against them, out of deference to victims. Colleges began losing cases in court, and men’s groups, free speech organizations, and finally, DeVos, argued that the rule had encouraged the creation of campus “kangaroo courts” that were protecting the accusers but not the accused.
DeVos last month rescinded the earlier guidelines and signaled the government’s intent to rewrite the rule and seek public comment on it.
O’Meara-Costello said that, rather than suing on prospective rule changes, women’s groups might do better to try to influence the development of the rule.
“If I were representing women’s organizations that’s what I would be gearing up for,” said O’Meara-Costello. “I am not necessarily someone who trusts the Trump administration to get this right. But I also think you run some risk that your lawsuit is just going to be mooted.”
The policy only affects the way sexual offenses are handled by universities, in an effort to protect all students’ rights to an education. Criminal cases continue on a parallel path.