Despite 18 attorneys general, including Delaware, Pennsylvania, New York, and Washington, DC, vigorously challenging the substance of the new Title IX Regulations (the Final Rule) and its August 14 effective date by filing a Motion for Preliminary Injunction, two days before the regulations were set to take effect, federal District Court Judge Carl Nichols issued an opinion denying the injunction.
The U.S. Department of Education (DOE) released an unofficial version of the Final Rules on May 6, 2020, requiring colleges, universities, and public school districts to comply with the new regulations by August 14, 2020. Many schools had to conduct wholesale revisions of their existing Title IX policies, procedures, supporting forms, and training to conform to the new federal regulations while handling unpredictable challenges and swift modifications to school operations resulting from the COVID-19 pandemic. A number of organizations filed a brief in support of the attorneys general’s motion. The American Council on Education and 60 higher education groups also opposed the new regulations, echoing the concerns of the attorneys general and characterizing the regulations’ effective date as “cruel” and “counterproductive” in light of the pandemic.
However, Judge Nichols held that the plaintiffs’ economic harms in conforming to the Final Rule were not significant enough to demonstrate “immediate irreparable harm” to justify granting injunctive relief. In his opinion, Judge Nichols recognized the “obvious seriousness of the COVID-19 pandemic” and indicated that “a later effective date might have been a preferable policy decision.” However, he declined to extend the start date. Judge Nichols held that the DOE considered the pandemic and concluded that, because the Final Rule closely mirrors the Proposed Rule, “schools have had almost two years to analyze and understand its requirements,” determining that the Final Rule’s effective date was not arbitrary and capricious.
The new regulations establish a new definition of sexual harassment that narrows the type of behavior that will be governed by the statue. Judge Nichols held that schools could handle conduct that falls outside of the purview of the revised sexual harassment definition through the schools’ own codes of conduct. The language in the opinion, “the Rule does not require or prohibit anything of schools regarding whether or how they must respond” [emphasis in original] gives educational institutions wide latitude to determine if and how to respond to those acts not covered by the revised definition.
The plaintiffs asserted that the revised jurisdictional language in the Final Rules mandating that sexual harassment occur in an “educational program or activity” failed to address off-campus harassment. Judge Nichols’ response to the narrowed jurisdictional requirement directed educational institutions to evaluate “not where the sexual harassment occurred but rather, whether it occurred at an operation ‘over which the recipient exercises substantial control over both the respondent and the context in which the sexual harassment occurs.’”
Arguments that the Final Rule’s grievance process was “arbitrary and capricious” were also denied by Judge Nichols. The Final Rule requires educational institutions to have a formalized grievance process for resolving Title IX complaints. Colleges and universities must provide a live hearing for resolving formal complaints, while K-12 institutions have the discretion as to whether or not to hold a live hearing.
In reviewing the arguments proposed by the plaintiffs and the DOE, Judge Nichols indicated in a 31-page opinion that the court “is not to substitute its judgment for that of the agency.” Judge Nichols concluded that the plaintiffs failed to show a likelihood of success on the merits or that irreparable harm would occur as a result of DOE’s implementation of the Final Rules.
Educational institutions at both the secondary and post-secondary levels were required to conform their Title IX policies and procedures to the Final Rule by Friday, August 14, 2020. Should you require assistance or have any questions about your institution’s Title IX compliance, contact the attorneys in the Title IX Group at Cohen Seglias for advice.