A Shadow of Things to Come: DOJ Filings in Affirmative Action and Title IX Cases

February 5, 2021
Firm Publication

On February 3, the United States Department of Justice (DOJ) took steps in two separate cases to execute on expected changes in policy promised by the Biden Administration in the areas of affirmative action and Title IX. It dismissed its lawsuit challenging Yale’s admissions policy and separately asked for a pause in the suit brought by a group of states challenging aspects of the Department of Education’s final Title IX regulations. While neither of these steps is particularly illuminating in itself, they reflect important shifts in enforcement policy by the government for colleges and universities.

United States v. Yale: Affirmative Action

First, as widely reported, the DOJ moved to voluntarily dismiss the federal lawsuit it filed in October 2020 alleging that Yale University’s undergraduate admissions policy violates Title VI by discriminating against Asian American students on the basis of race. While the Civil Rights Division will continue its investigation of Yale’s admissions program, which began in 2018, this lawsuit against Yale is at an end. This may not mean much of a reprieve, however, for Yale. Edward Blum, the president of Students for Fair Admissions (SFFA) which unsuccessfully attempted to intervene in the government’s suit, has stated that SFFA would be bringing suit against Yale within a matter of days.

In the area of affirmative action, while the Biden Administration will take a more friendly approach toward universities with race-conscious admissions policies than did the Trump Administration, as a practical matter, that may not mean too much due to the activity of private litigants. While the First Circuit ruled in favor of Harvard in SFFA’s case challenging Harvard’s race-conscious admissions policy, SFFA is expected to file a petition for certiorari with the Supreme Court. That petition is due in mid-April and the Supreme Court could decide by the end of June whether to review the case. If the Supreme Court grants certiorari, it would hear oral argument in the case in the fall of 2021 and be expected to render a decision by the end of June 2022. Meanwhile, in SFFA’s suit against the University of North Carolina, the parties’ briefing following the November 2020 bench trial will be completed later this month, setting up the district court in the Middle District of North Carolina to issue a decision sometime in the coming months. And SFFA’s most recent action against the University of Texas at Austin challenging its race-conscious admissions program (again) is currently under a scheduling order that has a trial set for September of 2022.

Whenever the Supreme Court takes one of these cases challenging race-conscious admissions, it will be closely watched to see if a majority of Justices on the current Court will reaffirm the ruling from 2003 in Grutter v. Bollinger. (See the previous examination of the First Circuit decision in the Harvard case.)

Pennsylvania v. DeVos: Title IX

Second, in the case of Pennsylvania v. DeVos, pending in the United States District Court for the District of Columbia, on February 3 the United States filed jointly with the plaintiff states, a motion to hold in abeyance the parties’ schedule for briefing of summary judgment. This suit was filed in June 2020 by a group of states challenging the Title IX regulations issued by the Department of Education. The district court denied a preliminary injunction in August 2020. The parties were amid briefing cross-motions for summary judgment on the plaintiffs’ Administrative Procedure Act claims, with final briefs due later this month. But, in the joint filing, the parties informed the court that their request to hold the briefing schedule in abeyance was “to allow incoming Department leadership to review the underlying rule at issue in this case.” The parties proposed providing a joint status report to the court on or before April 5. The court granted the parties’ motion to hold the schedule in abeyance.

As in the Yale case above, however, the actions by the federal government may not be determinative in the outcome of this policy. The court also, on February 4, granted a motion by the state of Texas to intervene in the case on the side of defendants, along with the United States. Texas sought intervention on January 19 on the basis that when President Biden was a candidate he stated an intention to eliminate the Title IX final rule while Texas perceives it as being in its interest to have the final Title IX rule remain in place. What intervention by Texas means is that the Department of Justice cannot obtain a dismissal of this case by reaching a settlement with the plaintiff states—the state of Texas will remain in the case to defend the legality of the Title IX regulations.

Regardless of the outcome of Pennsylvania v. DeVos, it appears that the litigation will likely serve as a bit of a forcing function to ensure that the DOJ and the Department of Education prioritize their review of the Title IX regulations. DOJ’s status report in this case on or about April 5 may provide insights as to what the Biden Administration intends to do with the Title IX regulations and how quickly it intends to act.

This summary barely scratches the surface of all that is happening as the new Biden Administration begins to make its mark. If you have any questions regarding any of the above, please do not hesitate to contact the author.