FIRE defends Title IX regs

Fight Back Title IX Cases

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.


Cases


Victim Rights Law Center, et al. v. Cardona, et al. (D. Mass.)

Current Status: On July 19, FIRE, IWLC, and Speech First asked the Supreme Court to review the First Circuit’s decision affirming denial of their motion to intervene. In the proceedings below, the U.S. District Court for the District of Massachusetts largely upheld the 2020 Title IX regulations on July 28, 2021. The deadline to appeal this ruling is September 27, 2021.

Summary

On June 10, 2020, four organizations that represent student survivors of sexual harassment and assault challenged the Department of Education’s Title IX regulations in the U.S. District Court for the District of Massachusetts.

FIRE, joined by Independent Women’s Law Center and Speech First, moved to intervene as defendants on July 21, 2020. After the district court denied their motion on July 27, 2020, in a summary order, FIRE, IWLC, and Speech First appealed to the U.S. Court of Appeals for the First Circuit. On February 18, 2021, the First Circuit affirmed the district court’s order denying the motion to intervene as defendants.

On July 19, FIRE, IWLC, and Speech First asked the Supreme Court to review the First Circuit’s decision affirming denial of the motion to intervene. This case presents a particularly stark example of a well-developed circuit split over a question of significant importance. Under Federal Rule of Civil Procedure 24(a)(2), an individual or organization seeking to intervene as of right must establish that none of the existing parties “adequately represent” its interests. In cases where the individual or organization seeks to intervene on the side of a governmental entity, the First Circuit and several other courts of appeal presume that the government will adequately represent those interests. By contrast, four federal circuit courts of appeal do not put a thumb on the scale in favor of the government.

The petition asks the Supreme Court to review this case to resolve the circuit split, arguing that the presumption conflicts with Supreme Court precedent holding that a prospective party who sought to intervene on the same side as a governmental litigant had only a “minimal burden” to establish inadequacy of representation. The petition also argues that the presumption lacks support in the text of Rule 24. If the federal government won’t defend its own laws, then citizens should have the opportunity to intervene and do so themselves.

In the proceedings below, after holding a bench trial on November 18, 2020, the district court upheld the challenged 2020 Title IX regulation, except for one provision prohibiting statements not subject to cross-examination.

Update

Four organizations — Institute for Justice, Alliance Defending Freedom, Liberty Justice Center, and Mountain States Legal Foundation — filed amicus briefs in support of FIRE’s petition. Although the parties waived their right to respond to the cert petition, on September 1, 2021, the Supreme Court called for a response by October 1, 2021. On September 7, 2021, the Court extended this deadline to November 1, 2021. 

Pennsylvania et al. v. DeVos

Current Status: On March 11, 2021, the Court granted Plaintiffs' and Defendants' joint motion to hold the case in abeyance to allow the government to evaluate potential regulatory changes which may alter the course of litigation. A joint status report is due on September 7, 2021.

On June 6, 2020, a coalition of 17 states and the District of Columbia filed a lawsuit challenging the Department of Education’s Title IX regulations in the U.S. District Court for the District of Columbia. On June 25, FIRE, joined by Independent Women’s Law Center and Speech First, moved to intervene as defendants, which was granted on July 6. The plaintiffs moved for a preliminary injunction, seeking to either enjoin implementation of the challenged regulations or to stay its effective date pending judicial review. On August 12, the court denied the plaintiffs’ motion for a preliminary injunction.

On January 19, 2021, FIRE filed a brief in support of summary judgment arguing that the Department of Education’s challenged regulations are constitutionally required under Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), and are not arbitrary or capricious under the Administrative Procedure Act. On February 4, the district court granted the State of Texas’s motion to intervene as a defendant and stayed the case for 60 days to allow the incoming administration time to review the regulations. On March 11, the district court granted Plaintiffs’ and Defendants’ joint motion to hold the case in abeyance to allow the government to evaluate potential regulatory changes, which may alter the course of litigation.

New York v. Department of Education

Current Status: On November 3, 2020, the case was voluntarily dismissed without prejudice.

On June 6, 2020, the State of New York filed a lawsuit challenging the Department of Education’s Title IX regulations in the U.S. District Court for the Southern District of New York. On June 29, FIRE moved to intervene, which the court denied on July 10. On July 17, FIRE filed an amicus brief in the case. On August 9, the district court denied the plaintiffs’ motion for a preliminary injunction and, on November 3, the case was voluntarily dismissed without prejudice. 

FIRE appealed the district court’s denial of intervention and, on March 10, 2021, the Second Circuit vacated the district court’s denial of intervention as moot and dismissed the appeal as moot. 

Know Your IX et al. v. DeVos

Current Status: On October 20, 2020, the defendants’ motion to dismiss was granted and the case was dismissed without prejudice.

On May 14, 2020, a coalition of organizations dedicated to helping students who experience sexual harassment and assault continue their education filed a lawsuit challenging the Department of Education’s Title IX regulations in the U.S. District Court for the District of Maryland. On June 24, FIRE, joined by Independent Women’s Law Center and Speech First, Inc., moved to intervene as defendants. On October 20, 2020, the federal district court granted the defendants’ motion to dismiss on the basis that the plaintiffs lacked standing. In the same order, the court denied FIRE’s motion to intervene as moot.

The Women’s Student Union v. U.S. Department of Education

Current Status: On August 5, 2021, after holding a hearing, the district court dismissed the Complaint, without prejudice, for lack of standing under Federal Rule of Civil Procedure 12(b)(1). The Plaintiff has until October 4, 2021 to file an amended complaint.

On March 8, 2021, The Women’s Student Union filed a lawsuit challenging the Department of Education’s Title IX regulations in the U.S. District Court for the Northern District of California. On July 1, 2021, the Department of Education moved to dismiss on the grounds that the plaintiff lacked standing. On May 24, 2021, FIRE, joined by Independent Women’s Law Center and Speech First, moved to intervene as defendants. On August 5, 2021, the court held a hearing on the pending motions and granted the Department of Education’s motion to dismiss for lack of standing, but allowed the plaintiff leave to file an amended complaint.