BOSTON — The attorneys general of 18 states, including Massachusetts, filed a lawsuit Thursday alleging a new federal rule “strips away longstanding protections against sexual harassment” and will leave schools less equipped to keep students safe.
The lawsuit takes aim at regulations around the federal civil rights law Title IX, issued in May by Education Secretary Betsy DeVos and slated to take effect in August. The new rule has been criticized by advocates in Massachusetts, who say it underscores a need for state lawmakers to act to prevent sexual misconduct on college campuses.
“Survivors of sexual assault and harassment deserve to have their voices heard and to be protected at our educational institutions,” Attorney General Maura Healey said. “We will not stand by as Betsy DeVos abandons students who seek a safe learning environment free from violence and discrimination.”
According to Healey’s office, the federal rules redefine sexual harassment in a way that narrows student protections and impose new procedural requirements that will reduce the number of misconduct reports. The suit asks the U.S. District Court for the District of Columbia to stop the changes from taking effect and to postpone the effective date, pending a ruling.
While the Education Department said the new rule “holds schools accountable for failure to respond equitably and promptly to sexual misconduct incidents and ensures a more reliable adjudication process that is fair to all students,” it has sparked criticism in Massachusetts and elsewhere, with opponents saying it rolls back protections for assault survivors.
“The new rule … favors reported perpetrators of sexual harassment, abuse and assault and sets survivors up for stigma, re-traumatization and silencing,” Boston Area Rape Crisis Center executive director Gina Scaramella said in a statement. “The limitations established by this rule significantly reduce survivors’ ability to access remedies, will make educational institutions less safe, and will have a chilling effect on survivors reporting.”
The rape crisis center urged state lawmakers to pass three bills it says would improve safety on college campuses and “mitigate the local impact of the new Title IX rule.”
Bills intended to gather more information about the prevalence of campus sexual misconduct and to support survivors have been filed on Beacon Hill for years and, despite some level of agreement in the Legislature, have yet to make it over the finish line and become law.
One of the bills, which supporters call the Healthy Youth Act, is a sex education bill that cleared the Senate in January.
The other two directly relate to college campuses.
One (H 1208/S 736) creates a task force to develop a sexual assault climate survey and would require colleges and universities to conduct the survey every two years and publicly post a summary of the results.
The other (H 1209/S 764) would require higher education institutions to create and communicate policies on sexual and gender-based violence, mandate prevention training for students, and establish a “confidential resource adviser” to provide information to both survivors and students accused of assault.
The two campus sexual misconduct bills have been the subject of an advocacy push in recent years. In late July 2018, during the final days of formal legislative business last session, both the House and the Senate passed versions of the survey bill, and the Senate amended its bill to add provisions from the broader assault prevention legislation.
The competing bills were never reconciled, leaving the process to start over when the new two-year term began in January 2019.
The Higher Education Committee held a hearing on both bills relatively early in the new session, in April 2019, which featured emotional testimony from college students and recent alumni who recounted their experiences with sexual assault on campus.
Some speakers at that hearing also encouraged the committee to wait to see what DeVos’ guidelines would look like and avoid passing laws that may not stand up over time. State-level policies that conflicted with the federal rules could end up subject to court challenges.
In late February and early March — before the COVID-19 pandemic had hit Massachusetts with enough force to reshape the public policy agenda — the Higher Education Committee endorsed and advanced redrafted legislation that includes elements from both bills.
The committee’s bills (H 4418, S 2580), now before the House and Senate Ways and Means committees, would create a task force charged with developing model questions for a sexual misconduct climate survey, which would then be reviewed by state higher education officials and distributed to colleges and universities, though schools could also write their own surveys.
Under the bill, public and independent higher education institutions would have to survey their students at least once every four years and post a summary of the anonymous responses online.
The committee bills would also require colleges and universities to adopt and communicate to students sexual misconduct policies that include procedures for reporting incidents, information on where to receive emergency assistance, description of support services and protective measures available for survivors, and information on the school’s procedures for resolving and investigating sexual misconduct claims. The legislation lays out specific measures those procedures would need to involve.
John Gabrieli of the Every Voice Coalition said the new federal guidelines are “silent” on issues such as data collection and prevention education, and that the legislation here was designed “to plug those gaps.”
“This is setting a minimum bar for what states can do, but there’s absolutely nothing to prevent states from doing more,” he said of the federal regulations.