The Women’s Student Union, or WSU, at Berkeley High School filed a lawsuit against the United States Department of Education in the United States District Court for the Northern District of California last Monday.
The lawsuit focuses on four changes to Title IX regulations made in August 2020 by the previous Secretary of Education, Betsy DeVos. These changes increased the requirements to determine what constitutes sexual harassment and decreased the need for school districts to respond to harassment, according to Seth Galanter, an attorney representing the WSU.
Galanter said sexual harassment must now be both pervasive and severe to warrant a school district’s response after the changes were implemented. In other words, a single severe case or multiple mild instances would not qualify as sexual harassment under the new definition.
In addition, the changes do not require a response from schools unless the harassment occurred on school grounds or at a school activity. As a result, Galanter added, cyberbullying and social media posts can no longer be considered harassment under the new definition as long as the cell phone from which the harassment originated was not on school grounds.
Schools also do not have to respond unless they have actual knowledge of the harassment.
“On its face, that makes a lot of sense. But the rule that it replaced said that a school is responsible when it had knowledge, or when it should have known,” Galanter said. “By putting responsibility on the school district for when it should have known, it forced the school district to … take affirmative actions. Under the new regulations, they can sit back and wait.”
Lastly, school districts are no longer required to have reasonable responses, Galanter added. They are only required to have a response that is not clearly unreasonable under the regulations.
Galanter said these changes mean school districts do not need to take sexual harassment as seriously as before.
President Joe Biden issued an executive order last Monday expressing an intent to review the current policies of the Department of Education within the first 100 days of the order. Biden said in the order that the review will cover Title IX regulations.
Galanter added that he hopes the court will side with the WSU and set these regulations aside until the Biden administration can re-regulate these issues. He noted, however, that because changing current regulations may take years, litigation would be a faster route to progress in this case.
“We’re hopeful that that’s what ultimately will happen,” Galanter said. “The Northern District is a good district to get speedy results … It’s likely that absent some intervening change, we will have a ruling from our judge this calendar year.”
