Lawsuit challenging 2017 Title IX interim guidance dismissed

April 2, 2019

Last October, we warned that a lawsuit brought by three nonprofit advocacy organizations against the Department of Education, Secretary of Education Betsy DeVos, and Assistant Secretary for Civil Rights Kenneth Marcus opened the door for a potential barrage of lawsuits against the government that previously would have seemed to be on shaky ground. Specifically, the plaintiffs argued for a broader conception of legal standing than courts have traditionally recognized — in other words, more people and organizations would be able to bring certain types of lawsuits. The plaintiffs filed an amended complaint, and last week, federal judge Jacqueline Scott Corley granted the defendants’ motion to dismiss the case.

SurvJustice, Equal Rights Advocates, and the Victim Rights Law Center filed the lawsuit in January 2018. They argued that when ED rescinded the 2011 “Dear Colleague” letter on schools’ obligations under Title IX and promulgated new interim guidance in September 2017, it violated both the Administrative Procedure Act and the equal protection guarantee of the Fifth Amendment, and it acted “ultra vires” (outside its legal authority). Last October, the court dismissed the plaintiffs’ APA claim with prejudice (that is, the plaintiffs can’t amend their complaint and try this claim again) because the interim guidance wasn’t an action “by which rights or obligations have been determined, or from which legal consequences will flow,” and therefore wasn’t challengeable under the APA.

But the court dismissed the Fifth Amendment and ultra vires claims without prejudice, allowing the plaintiffs to amend their complaint on those issues. It held that with respect to the Fifth Amendment claim, the organizations were improperly trying to assert others’ rights, not theirs, and had not adequately pleaded third party or associational standing — they hadn’t explained why they should be allowed to sue on behalf of students rather than simply letting students sue to protect their own rights. The court also held that the ultra vires claim comprised “wholly conclusory allegations,” and that the plaintiffs hadn’t explained how the agency responsible for enforcing Title IX had acted outside its authority by merely explaining how it will enforce Title IX.

What troubled FIRE, though, is that before dismissing these claims on the above grounds, the court seemed to accept the argument that because the interim guidance made it harder for the plaintiff organizations to achieve their missions, there existed the sort of injury to these groups that could be remedied in court. As we pointed out in our analysis last fall, the same would be true any time any law or regulation is enacted that runs contrary to an advocacy group’s goals — FIRE’s included. Unsurprisingly, past case law has distinguished between situations in which an organization has more work to do and situations in which government action impedes the organization’s ability to even try to achieve its goal (for example, by impeding communication with the organization’s clients).

In reevaluating the case, the court held last week that the plaintiffs did satisfy Article III standing, which requires a “concrete and particularized” injury (actual or imminent) that is caused by defendants’ actions and likely to be redressable by a favorable court decision. But plaintiffs still faced another hurdle: explaining to the court why they should be allowed to file suit to protect the rights of third parties, rather than themselves. Ordinarily, plaintiffs file suit to protect their own rights, but in rare circumstances where there is, as the Supreme Court wrote in Powers v. Ohio, 499 U.S. 400 (1991), “some hindrance to the third party’s ability to protect his or her own interests,” another party may be allowed to sue on that third party’s behalf.

Here, the plaintiffs argued that concerns over confidentiality, trauma, retaliation, and issues relating to ripeness and mootness create barriers to students filing their own lawsuit challenging the interim guidance. Ironically, though, nonprofit group Equal Means Equal, three pseudonymous students, and “similarly situated others” did exactly that: They challenged ED’s 2017 interim guidance. The court distinguished the case law plaintiffs had cited as support, emphasized that third-party standing is a rare exception to normal rules, and dismissed the equal protection claim with prejudice.

This is the appropriate result, and, indeed, one FIRE would have expected if we decided to sue directly on behalf of students whose rights have been violated. It’d be hard for us to argue that they can’t sue for themselves when they have already done so (many times, and to the benefit of students nationwide!).

In dismissing the ultra vires claim with prejudice, the court simply noted that the plaintiffs did not add any additional allegations to fix the deficiencies in their first complaint.

This is almost certainly not the end of the battle over ED’s decision-making with respect to Title IX enforcement. Over 100,000 comments were submitted in response to the proposed regulations ED published late last year, and it’s not clear when ED might enact the regulations or to what degree they might be different from the proposed regulations. FIRE hopes that the regulations’ protections for due process rights are enacted, and that courts continue to recognize how essential these safeguards are.