Families Advocating for Campus Equality
Image by Berta Ferrer
“When people get used to preferential treatment, equal treatment seems like discrimination.” - Thomas Sowell
Last week District Court judges nominated by Presidents Clinton and Trump denied efforts by multiple State Attorneys General (AGs), to delay implementation of the Department of Education Office for Civil Rights' (OCR) long-awaited Title IX regulations. The regulations, informed by a lengthy and robust notice-and-comment process during which OCR considered over 124,000 public comments, became effective August 14th amid escalating victim advocate cries of sex discrimination and prophecies of school indifference toward female complainants.
Families Advocating for Campus Equality (FACE), is a nonprofit formed by women, many of whom have benefited from Title IX, the landmark 1972 civil rights law that ensured equal opportunities for women in education. Having played an active role in advocating for the new regulations, FACE is confident these regulations will continue to effectuate Title IX's non-discrimination mandate by providing a meticulous, thoughtfully-designed blueprint that federally-funded schools can implement to address sex discrimination.
FACE filed amicus curiae briefs in both the NY and DC lawsuits that opposed the AGs' requested delay of the regulations' effective date. Clinton-appointed NY District Court Judge John Koeltl was first to conclude the NY AG's arguments for delay "were mostly moot and without merit.” [pp. 45-46] Citing FACE's brief, Judge Koeltl recognized that, absent the rules, "many [respondents] may have faced sexual discrimination in recipients’ current grievance procedures." [Id.] DC District Court Judge Carl Nichols, a Trump nominee, issued his ruling just three days later, citing with approval Judge Koeltl's opinion [e.g., p. 29], and finding the 14 state AG plaintiffs had “not established a likelihood of success on their claims." [p. 1]
FACE is confident the regulations will counteract the sex discriminatory impact of two decades of legally dubious OCR 'guidance' documents such as the 2011 Dear Colleague Letter ('11 DCL). This 'guidance' encouraged. and even required, blatantly unfair treatment of the nearly 98% of respondents who are men through policies that hindered their ability to defend themselves, subjugated their due process rights to those of the complainant ['11 DCL, p. 12], increased the likelihood they'd be found guilty, and threatened schools' noncompliance with loss of federal funding ['11 DCL, p. 16]. The resulting abject unfairness of many schools' processes provoked over 650 respondent lawsuits in which an increasing majority of courts have ruled in their favor.
CONCLUSION: As Judge Koeltl explained, the regulations will "benefit both complainants and respondents by providing procedural guidance for grievance procedures," and promising complainants "greater assurance" that decisions "will not be overturned because the process did not comply with due process.”
