On June 4, two separate lawsuits were filed by states against the Department of Education (the Department) alleging that the Department violated the Administrative Procedure Act (APA) in promulgating the final rules implementing Title IX of the Higher Education Act of 1972 (Title IX). Click here to read highlights from the Department’s Title IX Final Regulations. These suits, if successful, could serve initially to postpone the current August 14, 2020, effective date of the regulations and ultimately invalidate the regulations in part or as a whole.

One suit 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 by the District of Columbia and 17 states (California, Colorado, Delaware, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin) in the U.S. District Court for the District of Columbia. Both suits raise familiar claims under the APA seeking to invalidate the regulations, including the following:

  • The Department exceeded its statutory authority by, for example, adopting narrow definitions of sexual harassment and other terms that limit the obligations of schools and colleges under Title IX in ways that are contrary to the statute.
  • The regulations are not in accordance with law because they conflict with Title IX, the Family Educational Rights and Privacy Act (FERPA), and other federal laws.
  • The regulations are arbitrary and capricious because, for example, the Department failed to adequately justify its departure from decades of consistent policy.
  • The Department failed to follow the procedures required by law because, for example, the final regulations include a number of provisions (e.g. that the final regulations preempt state law, that schools post all Title IX training materials) that were not included in the draft regulations.

Three Important Issues for Consideration Raised in Lawsuits

These suits are important for a number of reasons, including the three issues outlined below:

First, the states attack some provisions of the regulations that are of particular interest to colleges and universities, such as the elimination of the single investigator model and the new requirement for a live hearing with cross-examination of parties and witnesses by advisors for the parties. If the states are successful in postponing or eliminating these requirements of the regulations, colleges and universities will retain important flexibility in designing policies and procedures that best fit their campuses.

Second, both suits particularly attack the August 14, 2020, effective date of the regulations (one of the suits alleging it was arbitrary and capricious) especially as it was set amid campus closures in response to the global COVID-19 pandemic. Obtaining additional time to put in place policies that comply with these regulations would be very beneficial for all institutions.

Third, the suits attack the provision in the regulations that allows respondents to bring a claim under Title IX whenever they allege that an institution failed to follow the grievance procedures required by the regulations. If this provision of the regulations were to be invalidated, institutions would not risk defending Title IX claims from respondents based solely on allegations that grievance procedures were not followed in technical or unimportant ways.

Response of Higher Education Institutions to Lawsuits

What does this all mean for campuses that are working hard now to revise their policies and procedures to comply with Title IX regulations that, absent this litigation, go into effect in about 60 days?

Plaintiffs in one or both suits could possibly be successful in obtaining a postponement of the effective date of the regulations while the courts consider each case. To obtain that relief, the plaintiffs will have to convince one of the presiding judges that the state plaintiff(s) meet the standards for a preliminary injunction that justifies relief, including proving irreparable harm if the regulations go into effect as planned. The cases are pending before judges with a range of experience; the case brought by the state of New York is pending before U.S. Senior District Judge John Koeltl, an appointee of President Clinton and, the case in the District Court for the District of Columbia has been assigned to U.S. District Judge Carl Nichols, a 2019 appointee of President Trump.

In any event, given that as of the date of this alert, no motion for preliminary relief has been filed in either suit, it is unlikely that any relief could be obtained much in advance of the regulations’ effective date of August 14, 2020. Those subject to the regulations accordingly may choose to continue efforts toward compliance now so that if the plaintiffs are unsuccessful in obtaining relief prior to August 14, revised policies will be ready as appropriate.

If you have any questions about these lawsuits or Title IX compliance, please contact the author.