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Nessel and Whitmer Join in Defending Title IX

LANSING ― Michigan Attorney General Dana Nessel with the support and coordination of Governor Gretchen Whitmer, today joined 17 other attorneys general in filing a lawsuit challenging the U.S. Department of Education’s (USDOE) final rule violating Title IX’s mandate that “no person shall be discriminated against on the basis of sex while participating in any educational program or activity receiving federal financial assistance.” If it goes into effect, the final rule will weaken protections for sexual assault and harassment victims, and will create inequitable proceedings crafted to silence students from kindergarten through college.

“I find it appalling that the Department of Education would spend its time and resources on weakening protections for sexual assault and harassment victims on school campuses here in Michigan and across this nation. This is a blatant disregard for the pain and fear victims of sexual assault and harassment face, and discourages reporting of these offenses,” said Nessel. “The fact of the matter is this: the final rule will make educational institutions less safe and diminish their ability to promptly deter, stop and prevent sexual harassment and violence. That reason alone is enough for Governor Whitmer and I to protect our students and join this lawsuit as the State of Michigan”

“As a survivor and a mother, it pains me to see how these new rules will water down Title IX protections for our students, which is why Michigan is joining several other states in challenging these new rules,” said Governor Gretchen Whitmer. “It’s important to stand up to efforts to weaken student protections against sexual harassment and violence that undermine the intent of Title IX. These rules will do nothing to change the culture of campus sexual assault and strongly discourages victim disclosure.”

Michigan is home to 15 state-funded universities, 28 public community colleges, 836 public school districts and 56 intermediate school districts. The millions of students who attend these schools across this state deserve every protection possible against sexual assault and harassment.

Student sexual harassment is rampant within schools across the country. In grades 7–12, 56% of girls and 40% of boys are sexually harassed. In college, nearly two thirds of both men and women will experience sexual harassment.

This chronic problem is vastly underreported and under-addressed, but instead of encouraging robust enforcement of Title IX’s antidiscrimination promise, the federal government has violated key protections by discouraging reporting and sowing confusion on campuses across the country.

In the complaint, the coalition asserts that the USDOE’s new rule strips students of longstanding protections against sexual harassment in violation of Title IX’s mandate to prevent and remedy sex discrimination. The rule also conflicts with federal and state statutes and Supreme Court precedent.

The rule will chill the reporting of sexual harassment, the complaint says, and make it harder for schools to reach fair outcomes as they investigate complaints.

The coalition says the new rule will cause irreparable harm to primary, secondary, and postsecondary schools in states across this nation. Among other flaws, the USDOE’s new regulations would: 

  • Narrow the protections for students and others by redefining “sexual harassment” to exclude a broad spectrum of discriminatory conduct from Title IX’s reach, arbitrarily excluding incidents of sexual harassment based on where they occur, and limiting when schools can respond to serious sexual misconduct; 
  • Require extensive and unnecessary new procedural requirements that will reduce the number of reports and investigations and undermine the ability of schools to provide a fair process to all students; 
  • Force schools to dismiss any reports of sexual harassment that happen outside the guidelines of the new rule, requiring schools to adopt parallel code of conduct provisions to keep their campuses safe. But this will also cause confusion and chill reporting; and 
  • Demand schools make significant changes by mid-August in the midst of the COVID-19 pandemic. This will require schools to bypass the mechanisms that allow students, parents, faculty, staff, and community members to help shape important school policies.   

The State of Michigan joins the attorneys general of California, Colorado, Delaware, the District of Columbia, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin in filing this lawsuit.

A copy of the complaint is available here.