Campus civil liberties coalition files petition to defend Title IX free speech, due process protections against state attorneys general lawsuit

UPDATE 7/21/2020: The coalition filed a motion to intervene in the case of Victim Rights Law Center, et al, v. Devos. The motion was filed in the United States District Court for the District of Massachusetts. This is the coalition's third motion to intervene in a challenge to the new Title IX regulations.

UPDATE 7/6/2020: The U.S. District Court in Washington, D.C., granted the coalition's motion to intervene in the case involving the 18 attorneys general.

WASHINGTON, June 26, 2020 — A coalition of civil liberties organizations that support free speech and due process on campus filed a petition Thursday in the U.S. District Court in Washington, D.C. asking to participate in litigation surrounding the Department of Education’s new Title IX regulations.

The petition from the Foundation for Individual Rights in Education, Speech First, and Independent Women’s Law Center seeks to defend against a lawsuit filed by the Democratic attorneys general of 17 states and the District of Columbia. Their lawsuit challenges the Title IX regulations recently promulgated by the Department of Education that codify important free speech and due process protections at our nation’s colleges and universities. If successful, the attorneys general lawsuit would stop these protections from taking effect.

Specifically, FIRE, Speech First, and Independent Women’s Law Center are asking the court’s permission to “intervene” in the lawsuit in order to argue that the Department of Education’s definition of peer-on-peer sexual harassment and the procedural protections it specifies are in many cases not merely good policy choices but actually required by the Constitution. 

Earlier this week, the coalition also asked to intervene in a separate lawsuit filed by the ACLU. The ACLU’s more limited lawsuit challenges the regulations’ definition of sexual harassment under Title IX. In that case, the coalition seeks to intervene in order to defend the Department’s definition, which it argues is required by the First Amendment.

On May 6, campus free speech and due process advocates won a big victory with the finalization of long-awaited Department of Education Title IX regulations. The regulations, set to take effect on Aug. 14, guarantee college students involved in the Title IX process fundamental rights that Americans recognize as essential to fairness and due process, but that have for too long been abridged by Orwellian policies and kangaroo courts. Those rights include an express presumption of innocence, live hearings with cross-examination, access to evidence, a definition of sexual harassment that is consistent with the First Amendment, and more.

“It is intensely disappointing to see this partisan group of attorneys general spend taxpayer dollars not only to defend colleges’ ability to put students on trial for their speech, but also to make sure those trials don’t even have to be fair,” said FIRE Executive Director Robert Shibley. “Protections like the presumption of innocence, impartial judges, and the right to face your accuser are not exactly radical in the United States of America.”

“Over the past decade, the definition of sexual harassment has expanded on campus to encompass protected expression, creating a climate of fear and destroying students' appreciation for the traditions of fairness upon which this country was built,” said Speech First President Nicole Neily. “The Department of Education's new Title IX rules should be upheld because they provide sorely needed (and constitutionally required) clarity for students, universities, families, and administrators.”

“Due process and free speech should not be partisan issues. They are American values. And when the representatives of one political party sue an administration of the other political party over the limits of these fundamental rights, it is necessary for groups without partisan affiliation to weigh in to ensure that these rights are upheld,” said Jennifer C. Braceras, director of Independent Women’s Law Center.

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The Foundation for Individual Rights in Education is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of students and faculty members at America’s colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience — the essential qualities of liberty.

Independent Women’s Forum is the leading national women’s organization dedicated to developing and advancing policies that aren’t just well-intended, but actually enhance people’s freedom, opportunities, and well-being. IWF oversees the Independent Women’s Law Center, which advocates for equal opportunity, individual liberty, and respect for the American constitutional order.

Speech First is a nationwide membership organization of students, alumni, and other concerned citizens; the organization is dedicated to preserving civil rights secured by law, including the freedom of speech guaranteed by the First Amendment.

CONTACT:

Daniel Burnett, Assistant Director of Communications, FIRE: 215-717-3473; media@thefire.org

Elizabeth Tew, Communications Manager, Independent Women’s Forum: 910-988-0726; elizabeth.tew@iwf.org 

John Gage, Speech First Account Executive, CRC Advisors: 402-730-2637; jgage@crcadvisors.com