On March 8, 2021, the Berkeley High School (BHS) Women’s Student Union (WSU) filed a lawsuit against the US Department of Education (DoED). The lawsuit states that regulations instated in 2020 under former Secretary of Education Betsy Devos reduce federal protections offered to public school students from sexual harassment, including sexual abuse, under Title IX. Title IX is meant to prevent sex-based discrimination in activities and educational programs in educational institutions that recieve federal funding.
In their lawsuit, WSU asks for the 2020 regulations to be withdrawn by the DoED on the grounds that they will increase the number women and LGBTQ+ students who experience sexual harassment and take away Title IX protections previously provided to students.
“These regulations provided this blockade between victims and solutions, and so it felt like a natural progression of our activism to move into this lawsuit because this was a way to keep helping people … when there was no longer a lot more we could do to fix Title IX within our community,” said Maize Cline, a co-leader of WSU and a BHS junior in Academic Choice (AC).
Under the 2020 regulations, schools are only responsible for investigating reports of sexual harassment that happened on school grounds or during a school function, such as a field trip. They are not required to investigate incidents which took place outside of those circumstances.
Additionally, schools are now only obligated to respond to sexual harassment that is both severe and pervasive, like sexual assault, dating violence, or stalking. Prior to the new regulations, schools would have responsibilities towards a victim even if harassment was labeled as either severe or pervasive, but not both. According to Alexandra Brodsky, an attorney with Public Justice representing WSU in their lawsuit, school districts assess how to categorize a report of harassment by determining if they have Title IX responsibilities in the situation. If a complaint is filed against the school for their handling of a case, the federal government would assess how to define the incident to evaluate the school’s response.
Lastly, under the 2020 regulations, the DoED will only judge a school district’s response to harassment under Title IX based on if they provided equal access to the student who reported the harassment, and whether or not they acted with deliberate indifference in a clearly unreasonable way. School districts are also only required to act when school employees have knowledge of harassment. The school is not held responsible for lacking knowledge of harassment, even if they should have known. For example, as explained by Brodsky, a school district would not be held accountable for lacking knowledge of harassment due to an inaccessible reporting system under the new regulations.
“We acknowledge that these problems in Berkeley existed before the current regulations in different forms. But one of the largest problems that we are seeing is that the regulations enable Berkeley to get away with not doing what they should be doing,” said Neva Zamil, a junior at BHS in AC and another co-leader of WSU.
President Joe Biden signed an executive order on March 8 directing his Secretary of Education, Miguel Cardona, to review Devos’s regulations and consider changing them. With their lawsuit, WSU wants to apply pressure to the Biden administration to change these regulations and improve upon those instituted in the past. “Our goal would be ultimately to not just have the regulations reversed to how they were prior to Betsy Devos’s rules, but to have them thought about more in-depth and changed in a more progressive way,” said WSU co-leader and BHS AC junior, Ava Nemeth.
WSU believes that if the 2020 regulations are withdrawn, an administrative complaint that the group filed in February of 2021 with the DoED’s Department of Civil Rights could be investigated. According to the lawsuit, the department will not investigate the complaint as of now because the allegations made regarding Berkley Unified School District’s (BUSD) response to sexual harassment are not unlawful under the 2020 regulations. “Unfortunately the court regulations really tied the department's hands, and stopped them from … helping Berkeley address off campus harassment and helping it put in place even better response mechanisms,” explained Brodsky.
WSU hopes this lawsuit will act as a catalyst for change both within BUSD and nationwide regarding response to sexual harassment and the support offered to student victims. “This lawsuit is unique from other Title IX lawsuits and other Title IX cases because we are high schoolers. And most of the Title IX cases that have really changed legislation have been from college students … By doing this as high schoolers we’re really hoping to draw more attention to [the students] who might not get noticed as much in Title IX cases that we have seen before,” said Cline.