FIRE fights back against lawsuits challenging 2020 Title IX regulations
On May 6, 2020, the Department of Education issued Title IX regulations requiring educational institutions to use the Supreme Court’s definition of student-on-student sexual harassment and to provide students important procedural safeguards during Title IX disciplinary processes. The regulations took effect August 14, 2020.
After their enactment, an array of organizations and attorneys general filed five lawsuits challenging the legality of the new Title IX regulations under the Administrative Procedure Act and the U.S. Constitution. These lawsuits claim that the Department did not follow APA procedures in enacting the regulations, and further allege that the regulations are not in accordance with law, exceed the Department of Education’s authority, are arbitrary and capricious, and violate the equal protection guarantee of the Fifth Amendment. FIRE disagrees.
FIRE therefore moved to intervene as defendants in all five cases in order to defend the critical protections for students’ rights contained in the regulations as not merely good policy choices, but as constitutional requirements. One of FIRE’s motions has been granted, while another was denied on the merits. (The remaining three were denied as moot, since the plaintiffs’ cases were dismissed.)
The contradicting rulings on two of FIRE’s motions to intervene are due to a split among the federal courts of appeal regarding whether courts must presume that the government will adequately represent the interests of would-be intervenors (such as FIRE). This question is particularly pertinent given the Biden Administration’s expressed opposition to the existing regulations. The differing outcomes in virtually identical cases illustrate why the Supreme Court should grant FIRE’s petition for a writ of certiorari to resolve this important question.