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Last week, state attorneys general filed two separate lawsuits seeking to vacate and set aside the U.S. Department of Education’s recently released Final Rule implementing Title IX of the Education Amendments of 1972 (“Title IX”). That rule, which will take effect August 14, 2020, makes drastic changes to how colleges and universities investigate and adjudicate allegations of sexual assault and harassment.1
If successful, the lawsuits could postpone the implementation and enforcement of the Final Rule until the lawsuits conclude. Unfortunately, a decision on that issue likely will not occur until much later in the summer, which means that schools subject to Title IX will likely have to continue the process of changing their sexual assault and harassment protocols to conform to the new Rule.
What do the lawsuits allege?
The Department’s Final Rule is the target of two lawsuits.2 One was filed by the State of New York in the U.S. District Court for the Southern District of New York. The other was filed in the U.S. District Court for the District of Columbia by the attorneys general in 17 states and the District of Columbia.3
Both lawsuits allege that the Department’s Final Rule violates the Administrative Procedure Act (“APA”) and Title IX itself because:
- the Final Rule narrows the definition of sexual harassment and limits schools’ ability to investigate and remedy sexual harassment in certain situations, which conflicts with Title IX’s broad anti-discrimination mandate;
- the Final Rule prescribes uniform, onerous grievance procedures and permits accused students to challenge the outcome of those procedures through the Title IX administrative enforcement process;
- the Department relied on a flawed cost-benefit analysis, citing benefits of the new rule without any evidentiary support and failing to account for its true costs (including its impact on the reporting of sexual assault and harassment); and
- the Department did not give adequate notice and opportunity to comment on several provisions added to the Final Rule after the notice and comment period ended.
The lawsuits also allege that the Final Rule violates the Family Education Rights and Privacy Act (FERPA) by requiring schools to provide records related to Title IX disciplinary investigations beyond what FERPA allows.
As relief, the states have asked the courts to (1) postpone the effective date of the Final Rule while the lawsuits run their course, (2) declare the Final Rule unlawful and set it aside, and (3) preliminarily and permanently enjoin the Department from enforcing the Final Rule.
Will the lawsuits delay implementation or enforcement of the Final Rule?
The Department’s Final Rule is scheduled to take effect on August 14, 2020. But both lawsuits ask the courts to postpone the effective date of the Final Rule and to issue preliminary and permanent injunctions prohibiting the Department from enforcing the rule. If the courts order any of that relief, the Department would not be able to enforce the new rule until the lawsuits reach their conclusion—at least against the public institutions whose states are parties to the lawsuits.
The effect of an order postponing implementation or enforcement of the Final Rule on other institutions is slightly less certain. Since 2018, the Trump administration has opposed “nationwide” injunctions that prevent federal agencies from enforcing federal policy against more than just the plaintiffs in the lawsuit at hand. Two U.S. Supreme Court justices have likewise expressed doubt about the validity of nationwide injunctions, although the high court has yet to address the issue head on.4
That said, the U.S. Court of Appeals for the D.C. Circuit—the federal appellate court that most often reviews challenges to federal agency action—has endorsed nationwide injunctions against agency action, holding that an order setting aside agency regulations under the APA has a “nationwide” effect that benefits plaintiffs and non-parties alike.5 The trial courts presiding over the Title IX lawsuits have likewise entered nationwide injunctions against agency rules they have deemed unlawful.6 Still, whether courts can enter such an injunction is a subject of legitimate debate, and whether the courts will enter a nationwide injunction against the Final Rule that benefits all colleges and universities in this case remains to be seen.
When will schools know whether implementation or enforcement of the Final Rule is delayed?
Likely not until later this summer.
The Department has yet to be served with the D.C. lawsuit. Its deadline to respond to the New York lawsuit is not until August 4, 2020.
Usually, parties seeking a preliminary injunction will move the court for that relief as soon as possible after the defendant is served. If that occurs here, the Department will have one to three weeks to respond to the plaintiffs’ motion. The court may then hold an evidentiary hearing. And, of course, the court will need time to rule after any hearing. That means we probably will not know whether implementation of the Final Rule will be postponed until mid-July at the earliest.
1. See Final Rule, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30,026 (May 19, 2020).
2. See State of N.Y. v. U.S. Dep’t of Educ., No. 1:20-cv-4260 (S.D.N.Y. filed June 4, 2020); Commonwealth of Penn. v. DeVos, 1:20-cv-1468 (D.D.C. filed June 4, 2020).
3. The plaintiffs are California, Colorado, Delaware, the District of Columbia, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.
4. See Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring).
5. Nat’l Mining Ass’n v. U.S. Army Corp. of Eng’s, 145 F.3d 1399, 1409-10 (D.C. Cir. 1998) (internal quotation marks omitted). Both of the trial courts presiding over the Title IX lawsuits have entered nationwide injunctions when determining federal agency action to be unlawful.
6. See, e.g., District of Columbia v. U.S. Dep’t of Agriculture, --- F. Supp. 3d ----, 2020 WL 1236657 (D.D.C. Mar. 13, 2020); New York v. U.S. Dep’t of Homeland Sec., 2019 WL 6498250 (S.D.N.Y. Dec. 2, 2019).