Berkeley High students gathered at Civic Center Park in February 2020 to address the issue of sexual assault and harassment at the school. Photo: Natalie Orenstein

The Women’s Student Union at Berkeley High is suing the U.S. Department of Education to strike down changes to Title IX regulations made by Betsy DeVos last year.

The suit, which was filed on Monday, argues that some of the current Title IX regulations reduce federal protections against sexual violence and harassment.

Students have counted on Title IX for nearly four decades to get schools to address sexual harassment. But the suit claims that some of the Trump-era regulations, which went into effect in August, limit schools’ federal responsibility to address misconduct and cause more of it to occur.

“We as high schoolers should not have to sue the Department of Education to get these rules changed and get the protections that should be our rights,” said Lindsey, 17, a student-leader with the Women’s Student Union. The conversation on sexual misconduct, which tends to focus on college campuses, often overlooks younger students in middle and high school.

“Nobody else has done this for us. We have been pushed to the side and ignored in Title IX cases, even though we are just as impacted by this as college students are,” said Maize, 17, another student-leader.

“I feel inspired by the Women’s Student Union’s bravery and passion, not just for their own education, but for the education of students everywhere,” said Alexandra Brodsky, one of the lawyers with Public Justice who filed the suit on behalf of the student group. National Center for Youth Law and Correia & Puth, PLLC are also representing the student group.

The current rules say that schools are obligated to respond to harassment only when it is both severe and pervasive, when it happens on school grounds or during school programs, and when a school receives a report of the harassment. The suit claims that these rules incentivize schools to take no action in the face of harassment and discourages students from reporting.

“Those were parts of the regulations that were really salient given struggles at Berkeley High and are particularly damaging for K-12 students writ-large,” Brodsky said. “The goal is for the court to strike down these parts of the regulations for the whole country.”

The suit also challenges the standards by which a school’s response is evaluated by the federal government. Previously, schools were expected to respond “promptly and effectively” to allegations of misconduct; now, they are merely expected to not act “clearly unreasonably.”

A lax attitude toward sexual misconduct at Berkeley High

In the last few years, students at Berkeley High have become increasingly vocal about what some students described as the school’s “rape culture,” perpetuated by what is seen as the district’s lax approach towards misconduct. Tensions boiled over last February when hundreds of students walked off campus in protest of the hostile environment and district’s negligence in addressing it.

The protests were sparked by a lawsuit filed on Jan. 31, 2020 by an anonymous female student who claimed the district failed to protect her after she was sexually assaulted on campus. The suit alleged that the school knew about the assault but failed to take action, permitting her assailant to continue to sexually harass her on campus.

Days later, graffiti appeared on a bathroom stall door listing names of “boys to watch out 4” and labeling some as rapists. Two days of marches and walk-outs began on Feb. 10, followed by confrontation between students activists and the district superintendent. Students presented a list of demands that ranged from consent education in all grades, a Boys to Men program for the sports teams, and a sexual misconduct crisis center. Their activism garnered national attention and prompted the district to hire a dedicated Title IX coordinator for the high school, but students say they want to see more progress.

The problems with sexual misconduct at Berkeley High were already top of mind for students in the Women’s Student Union when, the next month, DeVos rolled back Title IX protections, stripping students of what few protections they felt they had.

“That was a tipping point for us. We realized that we needed to do something. We needed to fight her,” Maize said.

Now, the Women’s Student Union has turned to the legal system to hold the school district accountable.

Last month, the Women’s Student Union filed a complaint with the Department of Education’s Office for Civil Rights against the district for failing to address a wide scope of sexual harassment.

The complaint details instances of harassment experienced by students at Berkeley High, such as “unwanted exposure to genitalia,” “students’ circulation of sexualized images of a classmate,” harassment during Zoom breakout rooms, and the continued existence of an informal club called Barbecue Club “dedicated to sexually harassing students.” Additionally, the complaint alleges that the district puts the burden on students to avoid contact with their harasser.

“We cannot afford to wait for Biden to spend years going through the appropriate channels to undo these regulations. Students deserve more than that.”

The Department has not yet responded to the complaint, but it is highly unlikely that they would open an investigation: Current Title IX regulations make it impossible to investigate complaints like these that fall outside the purview of the regulations, Brodsky said. Such experiences occur off-campus or are either severe or pervasive, but not both. Before the 2020 regulations, school districts would have been obligated to address such cases of harassment, according to Brodsky.

If successful, the lawsuit would mean that school districts nationwide would be responsible for responding to more sexual misconduct charges under new Title IX regulations. Still, students sounded the alarm about Berkeley High’s culture long before the DeVos rules took effect. The lawsuit could bring back earlier rules, but the Women’s Student Union is prepared to continue their fight outside of the lawsuit as well, including pushing for consent education to students in sixth grader and older.

At the same time, the Biden administration is revisiting Trump-era rules on sexual misconduct. On Monday, Biden signed two executive orders, launching an investigation into the regulations put in place by DeVos. But changing these rules could take months, if not years, Brodsky said.

“We cannot afford to wait for Biden to spend years going through the appropriate channels to undo these regulations. Students deserve more than that,” said Neva. The students hope that the lawsuit, if successful, could pave the way for more safeguards for survivors in the future.

“We don’t want to just be fixing Trump’s mistakes,” said Lindsey. “We really want to make sure that the Biden administration proactively makes changes that help protect students.”

Ally Markovich, who covers the school beat for Berkeleyside, is a former high school English teacher. Her work has appeared in The Oaklandside, The New York Times, Huffington Post and Washington Post,...