Survivors of campus sexual assault and harassment have reacted with shock and dismay to the news today that Education Secretary Betsy DeVos intends to roll back victim protections put in place by the Obama administration to reverse the longstanding indifference in schools and colleges to the discriminatory effect of sexual assault and violence. With this action, DeVos and her boss show that they are nothing short of rape apologists. Clearly the Secretary is taking her marching orders from a President who bragged about his ability to sexually assault women at will.
While providing new guidance that will make it more difficult for survivors to obtain relief from school administrators and the US Department of Education, the civil justice system remains an alternative avenue for justice and protection for victims since the legal provisions of Title IX cannot be changed by a change in guidance from the Department of Education’s Office for Civil Rights (“OCR”).
While DeVos and the OCR might decide not to enforce the law, nothing about DeVos’ decision interferes with the power of federal civil courts in this country from enforcing Title IX and the federal regulations implementing it. Title IX and 34 Code of Federal Regulations Part 106 still require schools and colleges receiving federal funding to take active measures to prevent a hostile campus environment, maintain a process for prompt and immediate response to a complaint of sexual violence or harassment, provide protection from exposure to further harassment, allow for accommodations to ensure that a victim does not suffer a loss of academic opportunities and to take appropriate disciplinary action when the facts support the complaint. There is nothing that DeVos can do to change these basic legal requirements.
If an academic institution responds to a complaint of sexual violence or harassment with deliberate indifference that results in exposure to further harassment, and a hostile campus environment for the survivor nothing stops that survivor from marching into a federal court to enforce those rights or to recover monetary compensation for the damages suffered by that deliberate indifference.
“We appreciate how desperate and helpless survivors must feel right now, but these victims need to be aware that Title IX legal protections and sanctions are still a viable option,” said Alex Zalkin, of The Zalkin Law Firm, which represents campus sexual assault victims from college campuses across the country. “We encourage any victim of campus sexual assault and sexual harassment to protect their rights and seek justice with legal representation from an experienced Title IX attorney.“
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