No Reprieve: New Title IX Regulations Take Effect as Scheduled

Educational institutions hoping for a last-minute reprieve from the new Title IX regulations scheduled to go into effect August 14 are out of luck. Earlier this week, the Southern District of New York denied a nationwide preliminary injunction sought by the state of New York to delay implementation of the new regulations (State of New York, et al. v. United States Department of Education, et al.). And, just days later, the U.S. Department of Education (ED) defeated another preliminary injunction motion filed by 17 states and the District of Columbia in federal court in Washington, D.C. (Commonwealth of Pennsylvania, et al. v. Elisabeth DeVos, et al.). A third preliminary injunction motion is pending in the District of Massachusetts — however, earlier this month, the court there denied a motion to expedite a hearing, stating that “a prompt September hearing is fully appropriate.”

As we previously shared, on May 6, 2020, ED released its long-awaited final regulations revising requirements for educational institutions subject to Title IX of the Education Amendments Act of 1972 (Title IX).

Soon after, the new regulations were challenged in court by numerous states and women’s advocacy groups striving to delay the August 14 enforcement date. Litigants argued that ED exceeded its statutory authority in promulgating the Title IX regulations, that the regulations were arbitrary, capricious and otherwise an abuse of discretion, and that ED did not properly follow notice-and-comment rulemaking procedures.

In denying the state of New York’s preliminary injunction motion, the court observed: “Rather than harming students, the Rule has the potential to benefit both complainants and respondents by providing procedural guidance for grievance procedures.” In reviewing both decisions, a number of points stand out.

ED’s Reliance on Supreme Court Precedent and the Statutory Text of Title IX Cannot Be Characterized as Arbitrary and Capricious

First, in the New York decision, the court concluded that ED’s definition of “program or activity” did not exceed its statutory authority because the definition was aligned with existing Supreme Court precedent. Similarly, in response to New York’s argument that the rule was arbitrary and capricious because it redefined key terms to impermissibly narrow Title IX, the court again relied on the fact that regulations rely primarily on standards articulated by the Supreme Court. As the court put it, turning to “Supreme Court authority could hardly be characterized as arbitrary or capricious.”

The D.C. decision similarly found that ED’s reliance on Supreme Court precedent could not be considered arbitrary and capricious, noting that the regulations’ requirement that sexual harassment be “in an education program or activity” was rooted in the statutory text of Title IX itself and “the Court cannot supplant the Department’s view of its own authority with Plaintiffs’ preference for a broader one.”

Unfair Grievance Procedures Against a Respondent Can Amount to Sex Discrimination

The New York decision recognized existing appellate court precedent, finding that unfair grievance procedures against a respondent can amount to sex discrimination. Thus, it found, it was within ED’s authority to promulgate regulations in order to ensure nondiscriminatory treatment of both complainants and respondents. In the D.C. case, the court dismissed any concern with the grievance procedures in one paragraph, simply noting that it had reviewed ED’s discussion of the formal grievance process and its reasons for having adopted it and concluded that it cannot be characterized as “arbitrary and capricious.”

COVID-19 Is No Excuse

Both courts agreed that despite its seriousness, the COVID-19 pandemic was not a persuasive reason to delay implementing the new regulations. The D.C. court noted that the final regulations are similar to the proposed regulations in most respects, and thus schools have had enough time to analyze and understand the new requirements.

Mandatory Dismissal Is a “Close Question”

Both courts took a close look at the regulations’ mandatory dismissal language. The D.C. court found these provisions — which require schools to dismiss Title IX complaints that do not meet the regulations’ revised definition of sexual harassment or that occurred outside the United States — to be a “close question” in terms of the limits of ED’s authority. However, the court ultimately concluded this was not grounds for an injunction.

So, beginning on August 14, schools will be required to comply with ED’s new regulations for handling complaints of sexual harassment on campus.