Regents voted unanimously Friday to support litigation challenging controversial federal changes to Title IX, the law governing sex-based discrimination, opening the door for the attorney general’s office to explore a formal legal challenge to the federal Department of Education.
The changes, which went into effect on Aug. 14, broadly reduced the jurisdiction of colleges and universities in any investigation of sexual misconduct and increased the degree of due process available to the accused, in large part through the addition of mandatory live hearings and cross examinations.
Proponents of the change, including Education Secretary Betsy DeVos, say the new rules rectify overbroad and inconsistent Title IX policies put in place under the Obama Administration and provide much-needed additions of due process to a system that made it too easy for false accusations to slip through the cracks.
Opponents have charged that the change was unnecessary and serves only to create a chilling effect that will drive down the reporting of sexual misconduct, harassment or assault at a time when such offenses are already underreported.
In Nevada, regents approved the changes during a contentious meeting on Aug. 7. Several regents criticized the rules and complained about short timelines and the lack of any legal challenge after the Education Department initially unveiled the final legal language in May.
But with the threat of $420 million in potential lost federal funding had the system tried to deny or delay the changes, regents ultimately voted 10-3 to adopt the new rules.
There are four lawsuits challenging the new rules working their way through the court system, including one multi-state lawsuit and another suit from the ACLU. No suit has so far been spearheaded directly by a university or university system, and the regents’ decision to support action by Attorney General Aaron Ford appears to be in that mold.
Of the lawsuits, none succeeded in stopping the implementation of the rules change before the deadline last week. In denying a request for an injunction in the multistate suit last week, a D.C. circuit court judge wrote that that plaintiffs, in part, could not prove substantial or irreparable harm would be done should the rules go into effect pending litigation.