Nebraska's Doug Peterson joined attorneys general from other states in signing onto a brief filed in Arkansas arguing states should have immunity from Title IX lawsuits filed in federal courts.
Attorneys general from Arizona, Kansas, Louisiana, South Carolina and Texas -- all Republicans -- also joined the friend of the court brief filed with the 8th Circuit Court of Appeals this week.
The pushback against provisions of Title IX comes as Betsy DeVos takes the reins of the U.S. Department of Education and as the Trump administration looks to carry out its campaign promise to rollback what some consider federal government overreach.
In a January confirmation hearing, DeVos said she would review Title IX and the Office of Civil Rights in order to ensure “that the intent of the law is actually carried out in a way that recognizes both the victim, the rights of the victims, as well as those who are accused.â€
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Along with federal review of the law, Nebraska and other states -- through their attorneys general -- have mounted their own argument against Title IX, latching onto a lawsuit filed by a former University of Arkansas at Fayetteville student who alleged a “deliberate indifference†by university officials after she reported being raped in a dorm room in October 2014.
Prosecutors declined to bring charges in the case, but the school conducted its own Title IX investigation.
The former student later sued in federal court, saying the university’s investigation violated Title IX, which prohibits sex-based discrimination at colleges and universities that receive federal funding.
The allegations include that the university improperly handled the process, failed to properly train a disciplinary panel that heard the case and did not implement policies to clarify "the procedure for trainers, coaches and student-athletes to follow when a student-athlete is the victim of sexual assault."
Attorneys for the University of Arkansas said the university -- as an extension of the state -- is protected by the 11th Amendment guaranteeing sovereign immunity to states from lawsuits brought in federal court.
U.S. District Court Judge P.K. Holmes III partially rejected that argument, denying the university’s motion to dismiss the case on its assertion of sovereign immunity, but gave the university the OK to test the legal theory in the appeals court.
“The Court cannot say that any appeal on the immunity issue would be entirely frivolous,†Holmes wrote in an opinion.
As the appeals process moves forward, the attorneys general -- including Peterson -- filed the brief to broaden the University of Arkansas’s argument of sovereign immunity to other states.
They wrote the 11th Amendment “deprives the federal courts of jurisdiction over un-consenting states unless Congress, pursuant to a laid exercise of power, unequivocally express its intent to subject the States to jurisdiction.â€
Suzanne Gage, a spokeswoman for the Nebraska Attorney General’s Office, said because Nebraska has “an important interest in protecting such immunity,†Peterson signed onto the brief.
“As enacted, the text of Title IX provides neither a private right of action nor a damages remedy,†Gage said in an email. “Where damages are claimed under spending-clause legislation, Congress must have left no doubt that it intended participating states to be liable for damages.â€
The University of Nebraska has asserted sovereign immunity in federal lawsuits as recently as 2016 when an Omaha man sued NU to prevent a balloon release at Husker football games.
U.S. Judge Laurie Smith Camp agreed with NU’s argument that the 11th Amendment grants states immunity from being sued in federal court, saying the environmental legislation used to form the basis of the lawsuit was brought under “demonstrates Congress did not intend to abrogate states’ sovereign immunity from suit.â€
An NU spokeswoman said the university’s legal counsel was not involved in the attorney general’s recent action involving Title IX.
Awareness of Title IX, enacted as part of the Education Amendments of 1972, was heightened after an April 2011 “Dear Colleague†letter from the Obama administration’s education department outlined the steps universities must follow in responding to reports of sexual assault, according to Jan Deeds, director of the Women’s Center at the University of Nebraska-Lincoln.
Universities, colleges or other entities receiving federal dollars could stand to lose that funding under Title IX violations, which prompted efforts in higher education to bolster response efforts made to students, employees or others on campus who report sexual violence.
If the person reporting sexual assault or sexual harassment feels a college or university did not comply with the obligations outlined in Title IX, they can file a complaint with the Office of Civil Rights or a lawsuit.
“The law has been there for a while, but until someone sued based on people not following the rule or doing what they were supposed to, there wasn’t any teeth to it,†Deeds said. “That changed.â€
According to the Chronicle of Higher Education, four Nebraska colleges and universities are currently named in Title IX complaints: UNL, the University of Nebraska at Kearney, Chadron State College and Central Community College.
Deeds said Title IX has provided a nationally uniform policy for colleges and universities to follow regarding issues tied to sexual violence and provided resources and education for students and employees.