The Rule, issued by the Department in May 2020, codifies—for the first time—the obligation of schools to address claims of sexual misconduct. The Rule also requires schools to conduct all sexual misconduct investigations without bias and in a non-discriminatory manner. Among other things, it requires schools to adopt an explicit presumption of innocence, allow both parties access to the evidence, and define sexual harassment in a way that is consistent with the First Amendment.
In their brief, the civil liberties’ coalition has asked the court to uphold the Rule and to dismiss the case, Commonwealth of Pennsylvania v. Zais, which was brought by 17 Democratic state attorneys general against the Department of Education. The partisan attorneys general argue that the Department overstepped its authority in issuing the Rule and claim that the Rule violates Title IX, the statute it seeks to implement.
The coalition argues that the Rule is a permissible exercise of statutory authority and that it adopts limits that are not only permissible but, in some cases, constitutionally required.
“The Department of Education’s new Title IX Rule requires schools to comply with basic constitutional norms regarding free speech and due process,” said Jennifer C. Braceras, director of Independent Women’s Law Center. “They are an important reminder that investigators cannot trample individual liberties, even in the pursuit of gender justice.”
“Over the past decade, the definition of sexual harassment has expanded on campus to encompass to encompass a wide array of conduct and protected expression, creating a climate of fear and suspicion,” said Speech First President Nicole Neily. “This lawfully promulgated rule provides much needed clarity for students, universities, families, and administrators.”
Independent Women’s Law Center and Speech First are represented in this matter by Cameron Norris of Consovoy McCarthy.
If the court sides with the civil liberties’ coalition and grants its motion for summary judgment, the case will be dismissed, and the Rule will stand.
Read the full brief HERE.