Betsy DeVos’s Title IX Rule Survives Students’ Rights Lawsuit

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Since shortly after taking office in 2017, U.S. Secretary of Education Betsy DeVos has made it a priority to change the way sexual harassment was handled in public K-12 schools, colleges, and universities. When DeVos’s Title IX rules became final in May 2020, students’ rights organizations weren’t happy. They filed a lawsuit within a week, but now that lawsuit has been dismissed. Find out what the Title IX rule means for students, and what’s next for student sex abuse advocates across the country.

What is Title IX of the Education Amendments Act of 1972?

Title IX of the Education Amendments Act is a federal law that was designed to protect students from discrimination at school on the basis of sex. Any K-12 school, college, or university receiving federal funding (nearly all of them) had to put in place procedures to respond to claims of sex discrimination.

In the 1990s and up through the Obama Administration, the Department of Education started issuing Title IX rules, called “Dear Colleague” letters, that said clearly that Title IX applied to sexual harassment as well. These Dear Colleague letters set out the process for responding to student survivors’ reports of sexual harassment and abuse. They also allowed a school to be held responsible if its administrators failed to appropriately respond to students’ complaints.

What Do Betsy DeVos’s Title IX Rules Mean for Student Survivors?

The federal government has stopped releasing data about sexual assault among school children. However, in the 2015-2016 school year, about 9,700 students reported sexual assault, rape, or attempted rape within their school districts. However, the DeVos Title IX rules could cause the number of reports to go down, even if the number of incidents doesn’t.

According to Betsy DeVos, the new Title IX rule “balances the scales of justice” by protecting the due process rights of those accused of sexual harassment or sexual assault. In fact, the rules make it harder and more embarrassing for student survivors to come forward by forcing them to confront their abusers in an open, in-person hearing where the abuser or his or her attorney can “confront” the victim, interrogating them. This ignores the trauma sex abuse survivors have suffered and that trauma’s psychological impact on survivors, including their memories, and how they interpret what happened to them.

The rule also redefines sexual harassment and increases the burden of proof from a mere tipping of the scales (preponderance of the evidence) to the highest level of proof required in civil court (clear and convincing evidence). Now, victims must prove that they suffered “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity. Because many instances of sexual harassment and sex abuse happen in private, this can create problems for survivors who have little more than their own stories to prove their case.

On top of all this, the rule also forgives schools who look the other way. A Title IX violation only occurs if the school is “deliberately indifferent” to this new tighter standard of sexual harassment. This will only aggravate the experiences student survivors are having already trying to get schools to take their allegations seriously. Without accountability, schools will find reasons to give abusers another chance or even disregard the reports entirely, even when there is severe mental, emotional, or physical harm to their students.

Judge Dismisses Students’ Rights Organizations’ Title IX Lawsuit

Because the new rule tips the scales in favor of abusers and schools against the victims of sexual harassment and assault, when the rules became official in May 2020, several students’ rights organizations were ready to file a Title IX lawsuit to get the new rules thrown out. The American Civil Liberties Union (ACLU), Know Your IX, the Counsel of Parent Attorneys and Advocates, Girls for Gender Equality and Stop Sexual Assault in Schools, filed a lawsuit in the federal District Court in Maryland saying that the way Betsy DeVos created the Title IX rules violated that state’s Administrative Procedures Act.

But on October 20, 2020, U.S. District Judge Richard Bennett threw the case out. He dismissed the complaint saying that the students’ rights organizations were not directly harmed by the rule, and didn’t have “standing” to sue. The advocacy groups had argued that the new regulations ran counter to their objectives and that they would have to divert resources to train activists in response to the rules. However, the judge said they could not provide evidence of an increase in training requests or additional spending.

What’s Next for Title IX Regulations?

The ACLU’s lawsuit may have been the first to challenge DeVos’s rules, but it won’t be the last time those rules show up in court. The attorneys general from 17 states and the District of Columbia have filed their own lawsuit trying to keep the policy from going into effect. The State of New York has filed a separate complaint as well. So far, judges have been hesitant to act, but these lawsuits don’t have the same standing issues as the one filed by the students’ rights organization.

That means they are likely to continue well into the next year. The incoming Biden Administration has already indicated it may be looking for ways to put a “quick end” to the policies and “return to and then build on” the Dear Colleague” letters from the Obama Administration. While the formal rule-making process for education policies is long and complicated, a settlement in the attorneys general case may provide quicker relief to student survivors and their advocates.

At Eisenberg & Baum, LLP, our sexual harassment attorneys and sex abuse advocates help students facing sexual harassment on campus. If you are facing a hostile educational environment, we can help you make sure your complaints are heard. Contact Eisenberg & Baum, LLP, today to talk to a sexual harassment attorney.

Black Women Face Gender and Racial Discrimination in Pinterest Careers

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Pinterest careers are often seen as a kinder, gentler social media start up. But according to a pair of black women who publicly resigned from the company in May 2020, the company’s public face hides a corporate culture of gender and racial discrimination that forced them out of the company and into filing a complaint with their state’s Department of Fair Employment and Housing.

Pinterest’s Public Perception of Positive Diversity

Among social media startup companies, it is hard to find one with a better reputation than Pinterest. The company was started by a tech industry outsider from Iowa and is known for having etiquette policies like, “Be Nice.” At one point, co-founder Evan Sharp said that the company liked to hire “geniuses that are nice to each other.”

Much of the company’s reputation for supporting diversity was a result of the work of the company’s 3-person policy team, which included Ifeoma Ozoma and Aerica Shimizu Banks. The team was responsible for the company’s decision to stop promoting content about slave plantation weddings and anti-vaccination theories, as well as reinstating holiday pay for Pinterest contractors.

Policy Team Cancels Their Pinterest Careers Over Discrimination Complaints

But behind closed doors, Pinterest employees face the same problems as other women in tech. In May 2020, Ozomo and Banks, both black women, publicly terminated their Pinterest careers on Twitter, posting that they were underpaid and faced gender and racial discrimination at work. Ozomo, Banks, and several other anonymous Pinterest employees told the Washington Post that the reality inside the company was very different from the public face. Ozoma told the Washington Post:

“On the one hand, Pinterest was fine with me being the person interviewed on ‘All Things Considered,’ the person who’s doing press all around the world on behalf of the company for an initiative I’m leading,” Ozoma said. “And on the other hand, they just completely did not believe that I had enough sense and enough ability, both financially and otherwise,” to keep pursuing her bias claims, which she felt Pinterest had shrugged off.

One black woman was told to stop speaking at meetings, only to watch her manager use her presentations to speak to clients in her place. The only black person on her team, she told the newspaper that an executive joked that she should act as “the servant” and “serve” her co-workers during a team dinner. She said:

“Everyone knew it was wrong, but nobody said anything in that moment.”

When the black women employees raised these issues with HR, they were made to feel imcompetent and faced retaliation. Under the guise of investigating gender and racial discrimination complaints, Pinterest hired outside investigators to dig into ways to blame the victim.

For example, in June 2019, Ozoma’s personal details were published on extremist forums such as 8chan and 4chan after Ozomo suggested creating advisory warnings around “white supremacist” statements by conservative news personality Ben Shapiro. A coworker leaked her personal information to these social media groups that organize harassment campaigns. But when Ozomo went to Pinterest’s legal department for help, the company asked a third-party company to research whether Shapiro actually was a white supremacist — questioning the validity of her claims instead of ensuring she was safe from harassment at work.

Discrimination in Tech Tied to Monoculture in Recruitment

In response to Ozomo’s and Adams’s Twitter announcement, Pinterest chief executive Ben Silbermann issued a note to his staff saying:

“What I’ve learned over the past few weeks is that parts of our culture are broken. Truthfully, I didn’t understand just how much work we have to do. That’s not an excuse, that’s a failure in leadership, and I’m truly sorry for letting you down. I’m grateful that so many of you had the courage to share your experiences honestly and openly. . . .

“It’s been devastating to hear the stories of Black employees who feel like they don’t belong at Pinterest. . . . I’m embarrassed to say that I didn’t understand the depth of the hardship and hurt many of our team members have experienced. I need to do better. My leaders need to do better. And Pinterest needs to be better.”

Silbermann’s letter acknowledged that gender and racial discrimination can persist even in companies with anti-discrimination policies if workers are afraid of bringing their concerns forward. He also acknowledged a lack of diversity at the highest levels of the company. Michelle Kim, a diversity expert who hosts workshops for tech companies, including Pinterest told the Washington Post:

“Unfortunately, this is not just a Pinterest problem. Every tech company I know has stories of anti-Black racism and bias.”

In part, this is due to the tech industry’s “monoculture”, a system where white and Asian men are put into positions of power and then tend to hire people from within their networks, who tend to also be white and Asian men, who hire people from within their networks, and so on. This creates a homogenous employee group where women and minorities are underrepresented and feel out of place, even when they have excellent credentials. It isn’t that there is a lack of talent among diverse populations. For example, Ozoma and Banks had resumes including work at Google, Facebook, and the White House, as well as degrees from Oxford and Yale. However, when it comes to hiring and promoting black women and other minorities, those credentials often take a back seat to questions of “culture” and “fit” that perpetuate white male dominance within the industry.

Silbermann has promised further changes in Pinterest careers, including a comprehensive review of employee compensation and evaluations, and senior-level and board-member recruitment. However, if Ozoma’s and Banks’s circumstances show anything, it is that policies aren’t enough. Without robust internal enforcement, gender and racial discrimination will continue to thrive, and employees who face harassment and discrimination will still need to resort to employment discrimination complaints to protect themselves and their rights.

At Eisenberg & Baum, LLP, our employment discrimination attorneys know that policies on paper aren’t enough to protect black women from gender and racial discrimination at work. If you work in tech or another male-dominated industry and have been treated poorly by your managers and your company, we can help. We will meet with you and review your options to get you compensation for the harm you have suffered. Contact us today to schedule a free consultation.