Title IX Compliance Deadline Quickly Approaching

Four lawsuits have been filed challenging the Rule, and three request injunctive relief to postpone the effective date. 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) (NY Action); Commonwealth of ‎Penn. v. DeVos, 1:20-cv-1468 (D.D.C. filed June 4, 2020) (DC Action); Victim Rights Law Center, et al., v. Elisabeth D. Devos, et al., 1:20-cv-11104 (D. Mass. filed June 10, 2020) (MA Action). Plaintiffs have argued, among other things, that the effective date is unreasonable in light of the administrative burdens that COVID-19 has placed on educational institutions, and that even absent that strife, the complexity and extensive nature of the Rule renders the effective date unreasonable.

On August 9, 2020, Judge John G. Koeltl denied plaintiffs’ motion for a preliminary injunction in the NY Action. The court held that plaintiffs failed to demonstrate a likelihood of success that the ED acted “arbitrarily and capriciously” or otherwise in violation of law when it promulgated the Final Rule, or that implementation of the Final Rule would likely cause immediate and irreparable injury.

Plaintiffs in the NY Action had argued that the Rule impermissibly narrowed the definition of “program or activity” under Title IX and requires schools to implement grievance procedures that confer rights on respondents that frustrate the purpose of Title IX. The court rejected the first argument, noting that ED “recognizes the existing definition of ‘program or activity’ under Title IX” and clarified that the Rule’s definition includes examples that are aligned with the Supreme Court’s decision in Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999), which analyzed a school’s liability under Title IX in the context of monetary damages. With respect to the second argument, the court held that Title IX protects both complainants and respondents from sex discrimination and that it was within ED’s authority to decide that “schools should follow grievance procedures that are fair to both complainants and respondents before any disciplinary sanction can be taken against a respondent.” The court also rejected plaintiffs argument that the Rule was “arbitrary and capricious” and was not adopted in accordance with the Administrative Procedures Act because certain provisions of the Rule were not “logical outgrowths” of the proposed rule on which ED solicited comments.

On August 12, 2020, Judge Carl J. Nichols denied plaintiffs’ motion for a preliminary injunction in the DC Action. The court held that “[a]lthough [p]laintiffs have raised serious arguments about certain aspects of the Rule, they have not established a likelihood of success on their claims, nor have they established that they are likely to suffer substantial irreparable harm pending further litigation.”

The court did identify three arguments raised by plaintiffs that presented close questions and warranted lengthier discussions, but acknowledged that its scope of review is deferential to agencies under the arbitrary and capricious standard and ultimately concluded that plaintiffs were not likely to succeed on these fronts. Those issues included: (1) implementation of a mandatory grievance process in K-12 schools where children are still developing and where such formality may interfere with the educational role of discipline; (2) whether the ED has the authority to penalize recipients for taking a broader view of harassment and punishing such misconduct as Title IX violations; and (3) selection of the August 14, 2020 implementation date. While the court acknowledged that “a later effective date might have been a preferable policy decision,” it found that the ED considered the COVID-19 pandemic as well as the other concerns, and the selection is not likely to be found to have been arbitrary and capricious.

While the request for interim relief in the MA Action is still pending, the hearing on the request is set for September 2, 2020. Accordingly, it seems highly likely that the Rule will go into effect as scheduled on August 14, 2020. Educational institutions that receive federal funding should therefore plan accordingly.

For more information or assistance with compliance efforts, please reach out to your regular Pillsbury contact or the authors of this client alert.