Via America’s Lawyer: Former education secretary Betsy DeVos left behind a controversial legacy: the overhaul of student sexual misconduct guidelines under Title IX. Mike Papantonio is joined by Public Justice attorney Alexandra Brodsky to explain how policy revisions have relieved schools of accountability when addressing sexual misconduct cases brought forth by college and K-12 students. Will the Biden administration hit “undo” on provisions that protect perpetrators?


*This transcript was generated by a third-party transcription software company, so please excuse any typos.

Mike Papantonio:             Changes made to Title IX under former education secretary Betsy DeVos, well, they’ve alarmed critics who say that students are now discouraged from filing sexual harassment claims. Now many are pressuring Biden’s administration to hit undo on this. Joining me to talk about this is, is attorney Alexandra Brodsky. Alexandra, let me ask you, this, when people look at this law, this legislation, they don’t even see the most important part of it, do they? They don’t understand what the impact is on violence against people in these, these settings, do they? What’s your, what’s your take?

Alexandra Brodsky:          I think that’s absolutely right. You know, I’ll say that when I was a student, I thought that Title IX was a law that just had to do with women’s sports. But, um, Title IX prohibits all kinds of sex discrimination in schools and has for decades required that schools from, you know, kindergarten to graduate school, address sexual harassment that students experience, because if you’re being sexually harassed in school, you can’t learn. And Betsy DeVos Trump’s secretary of education created new rules for Title IX that turned a sex discrimination law into a weapon against survivors of sexual harassment. She limited what kinds of sexual harm schools are required to address. And she lowered the bar for what, what adults have to do when a, when a student turns to them for help.

Mike Papantonio:             Well, hasn’t she, hasn’t she really shifted the burden here? I mean, isn’t that what it is? You’re, you’re, you’re making a claim. You, you, you, you know, there’s, there’s been abuse involved. You have a very clear claim, but she has shifted the burden to the person who’s the victim now. Hasn’t she?

Alexandra Brodsky:          What I think that she’s really done is she’s lowered the burden on schools. So what she’s done is said that, uh, there are fewer kinds of sexual harms that schools have to respond to, and that when they get that complaint from a child, rather than acting in a way that is prompt and effective, which is what administration’s required, both Democratic and Republican administrations required for decades before. Now, all a school has to do is not be quote clearly unreasonable. And what that essentially does is it gives schools a incentive to avoid learning about sexual harassment. And then it basically says so long as they do something when a student reports that’s going to be enough, they’re going to, they’re going to be off the hook.

And one of the things that really saddens me is that, students used to be able to turn to the department of education for help if they felt like their school had mistreated them when they had filed a complaint of sexual harassment. But now, even though we have a new administration, which I think it’s clear, cares more about student survivors, Betsy DeVos’ legacy continues to tie this department’s hands because her rules are binding. And so even if everyone at the department of education agrees that a school hasn’t done enough to support a student survivor, they have to follow Betsy DeVos’ rules and let the school off the hook.

Mike Papantonio:             Yeah. What I found incredible about this is everything you’re saying is kind of hidden in here. Isn’t it? If somebody doesn’t understand the law, they look at this and say, ah, it looks pretty innocuous until you start understanding what the ramifications are. What I love about your organization and that’s why I love to have you on this show, you’re actually litigating a Title IX case brought forward by high school students in California. And, and you do, your organization does that all the time. Thank you for that. Bring us up to speed on that case, if you would.

Alexandra Brodsky:          Sure. So, uh, public justice represents a organization of high school students in California who are suing the department of education. And the goal is to get a federal court to strike down what we see as the most damaging parts of the rule. And I have to say, I have loved working on this suit because we represent, um, this organization, the women’s student union in Berkeley, and they are made up of, you know, young students they’re high schoolers. They’re, you know, just trying to learn. And they are taking on the ultimate Goliath, um, which is their federal government and saying, hey, you need to, you need to protect us just as you did, you protected students for decades before. And, um, one of the things that we’re also excited about with this lawsuit is that it’s the first one to focus on how DeVos’ rules impact, uh, K-12 students.

So a lot of public debate, um, about, uh, sexual assault, sexual harassment in schools focuses on colleges and universities. And it’s certainly true, um, that, uh, there’s far too much violence and, uh, at, in higher education and that schools are often not doing enough. But I have to tell you K-12 schools, you know, when we’re talking about true children, those schools are years behind colleges and universities. A lot of them don’t even think that they have to do anything when a student turns to them for help. And so we’re really glad that this lawsuit can shine a spotlight on the specific impact of these regulations on, on younger students who in truth, uh, are much more reliant on their, adults in their lives, adults in schools, to do right by them.

Mike Papantonio:             Well, we’re out of time, but I bet you would agree with me that the Biden administration, they need to take action to amend the changes that are made to this Title IX. They need to do it now. Anyway, thank you for joining me. Thank you for being in that fight. And I hope you’ll come back.

Alexandra Brodsky:          Thanks for having me.

Mike Papantonio is an American attorney and television and radio talk show host. He is past president of The National Trial Lawyers, the most prestigious trial lawyer association in America; and is one of the few living attorneys inducted into the Trial Lawyer Hall of Fame. He hosts the international television show "America's Lawyer"; and co-hosts Ring of Fire Radio, a nationally syndicated weekly radio program, with Robert F. Kennedy, Jr. and Sam Seder.