While many individuals and organizations have provided commentary and criticism over the revised Title IX regulations (the Rules) released in early May amidst the COVID-19 pandemic, 18 states’ attorneys general have collaborated to file suit challenging the changes to the Rules. The suit filed on June 4, 2020, in the U.S. District Court for the District of Columbia is believed to be the first to challenge the controversial revisions to the Title IX regulations. The lawsuit is led by California Attorney General Xavier Becerra, Pennsylvania Attorney General Josh Shapiro, and New Jersey Attorney General Gubir Grewal. Additional state attorneys general that signed on to the suit include Colorado, Delaware, Illinois, Massachusetts, Michigan, Minnesota, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and Washington, D.C.

The suit seeks to prevent the Rules from being implemented, and the complaint cautions that if the new regulations are permitted to take effect, “students across the country will return to school in the fall with less protection from sexual harassment.” Key differences in the new Rules include a definition of sexual harassment that is narrower from the definition outlined in case law previously used by many schools. The sexual harassment definition in the new Rules may fail to offer protection of conduct that would have previously fallen under the guise of this statute, including travelling to or from school and participating in study abroad activities. The new regulations also provide a process for the accused and accuser to cross-examine one another using an attorney or advisor and allow schools to choose whether to use a “clear and convincing” or “preponderance of evidence” standard of proof so long as the standard is applied consistently for both faculty and staff in sexual misconduct cases.

The U.S. Department of Education and U.S. Secretary of Education, Betsy DeVos, assert that the revisions will “strengthen Title IX protections for survivors of sexual misconduct” and “restore due process in campus proceedings.” However, the complaint highlights that the revised regulations will roll back decades-long progress made to end the “corrosive effects of sexual harassment on equal access to education.”

The new Rules are scheduled to take effect on August 14, 2020. The attorneys general describe this date as “impracticable” due to the wholesale changes that public schools, colleges, and universities are expected to make to their Title IX policies and procedures to conform to the new Rules in three months. Additionally, the health crisis has caused a significant strain on the schools’ financial resources, while faculty, staff, and students are away from the campus working remotely or on summer vacation, further aggravating the challenges schools face with implementing the new Title IX requirements in such a short time.

In its prayer for relief, the attorneys general have asked the court to:

  1. Postpone the effective date of the Rules pending judicial review.
  2. Declare the Rules unlawful for a host of procedural issues.
  3. Preliminary and permanently prevent the Department of Education and its officers, agents, and employees from applying and enforcing the Rules.
  4. Vacate and set aside the Rules.

We will continue to monitor the outcome of this lawsuit. In the interim, we stand ready to assist you and your educational institution with understanding the new regulations, including providing training and assisting you with modifying your existing policies and procedures to comport with all federal mandates.