Phil Weiser

Colorado Attorney General Phil Weiser speaks to the Colorado Water Congress in Westminster on Jan. 30, 2020.

Attorney General Phil Weiser has joined a lawsuit against U.S. Secretary of Education Betsy DeVos, alleging that new federal rules governing schools’ sexual misconduct procedures will deter victims from coming forward and disregard the potential emotional and mental toll on students, slanting the process in favor of alleged abusers.

“In Colorado, our effective policies and procedures should be allowed to remain in place, without the federal government’s looming threat — in the midst of a pandemic — to revoke funding for our colleges and universities if they are not able to radically change their operations with minimal notice,” Weiser said.

Title IX of the Education Amendments Act of 1972 provides that no one “on the basis of sex [shall] be excluded from participation in, be denied the benefits of, or be subjected to discrimination” in any educational activity funded through federal money. The U.S. Department of Education has narrowed the definition of sexual misconduct through its rule to include sexual assault or dating violence, school employees leveraging unwelcome sexual conduct, and “severe, pervasive and objectively offensive” behavior.

Colleges and universities must also hold hearings during which advisors may cross-examine both parties to the complaint. The attorneys general claim that this requirement fosters a "litigation-like" atmosphere.

“[P]rimary, secondary, and postsecondary schools across the country will be required to completely overhaul their systems for investigating and adjudicating complaints of sexual harassment in less than three months, in the midst of a global pandemic that has depleted school resources, and with faculty, staff, and student stakeholders absent from their campuses due to the pandemic and, in many cases, on leave due to the summer,” the lawsuit argues.

DeVos, in a September 2017 speech, criticized the current adjudication processes of colleges and universities, saying that they were unfair and traumatizing to both survivors and alleged perpetrators.

“Too many cases involve students and faculty who have faced investigation and punishment simply for speaking their minds or teaching their classes,” she said. “Any perceived offense can become a full-blown Title IX investigation. But if everything is harassment, then nothing is.”

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