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 several important procedural safeguards during disciplinary processes for sexual misconduct cases. The regulations took effect August 14, 2020.

Five lawsuits were filed challenging the legality of these regulations under the Administrative Procedure Act and the U.S. Constitution. The five lawsuits’ allegations include that the regulations are not in accordance with law, they exceed the Department of Education’s authority, they are arbitrary and capricious, the Department did not follow APA procedures in enacting the regulations, and the regulations violate the equal protection guarantee of the Fifth Amendment.

FIRE filed motions to intervene as defendants in all five cases in order to argue that the regulations are not merely good policy choices but actually required by the Constitution. One motion is pending, one has been granted,  two have been denied, and one case was dismissed.

The cases are:

FIRE defends Title IX regs in court: Know Your IX et al. v. DeVos

Current Status: FIRE, Independent Women’s Law Center, and Speech First filed a motion to intervene as defendants. On October 20, 2020, defendants’ motion to dismiss was granted.

Know Your IX; Council of Parent Attorneys and Advocates, Inc.; Girls For Gender Equity; and Stop Sexual Assault In Schools v. Elisabeth D. DeVos; Kenneth L. Marcus, and United States Department of Education (U.S. District Court for the District of Maryland) (filed May 14, 2020 by the ACLU)

FIRE defends Title IX regs in court: Pennsylvania et al. v. DeVos

Current Status: FIRE, Independent Women’s Law Center, and Speech First filed a motion to intervene as defendants, which was granted on July 6, 2020. The court denied plaintiffs’ motion for a preliminary injunction on August 12. On January 19, 2021 we filed our brief in support of summary judgment arguing that the Department of Education's rule is constitutionally required under Davis and not arbitrary or capricious under the APA. On February 4, the Court granted the State of Texas' Motion to Intervene as defendant and stayed the case for 60 days to allow time for the incoming Department leadership to review the rule. On March 11, 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.

Pennsylvania, New Jersey, California, Colorado, Delaware, Illinois, Massachusetts, Michigan, Minnesota, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and D.C. v. Elisabeth D. Devos, United States Department of Education, and Texas (U.S. District Court for the District of Columbia) (filed June 4, 2020)

FIRE defends Title IX regs in court: New York v. Department of Education

Current Status: FIRE filed a motion to intervene as defendants, which was denied on July 10, 2020. FIRE appealed the District Court's denial and on March 10, 2021, the Second Circuit vacated the District Court's denial of intervention as moot and dismissed the appeal as moot. FIRE filed an amicus curiae brief in the case on July 17. The court denied plaintiffs’ motion for a preliminary injunction on August 9. On November 3, the case was voluntarily dismissed.

State of New York v. United States Department of Education and Elisabeth DeVos (U.S. District Court for the Southern District of New York) (filed June 4, 2020)

FIRE defends Title IX regs in court: Victim Rights Law Center et al. v. DeVos

Current Status: FIRE, Independent Women’s Law Center, and Speech First filed a motion to intervene as defendants, which was denied on July 27, 2020. This denial has been appealed to the U.S. Court of Appeals for the First Circuit. On January 5, 2021 the parties presented oral argument before the panel. On February 18, the Court affirmed the district court's order denying Movants' motion to intervene as defendants.

Victim Rights Law Center, Equal Rights Advocates, Legal Voice, and Chicago Alliance Against Sexual Exploitation v. Elisabeth D. DeVos; Kenneth L. Marcus, and United States Department of Education (U.S. District Court for the District of Massachusetts) (filed June 10, 2020 by National Women’s Law Center)

FIRE defends Title IX regs in court: The Women’s Student Union v. U.S. Department of Education

Current Status: FIRE, Independent Women’s Law Center, and Speech First filed a motion to intervene as defendants on May 24, 2021.

The Women’s Student Union v. U.S. Department of Education (U.S. District Court for the Northern District of California) (filed March 8, 2021)