FIRE defends 2020 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. (1st Cir.)

Current Status: The U.S. District Court for the District of Massachusetts largely upheld the 2020 Title IX regulations on July 28, 2021, except for one provision prohibiting statements not subject to cross-examination. Families Advocating for Campus Equality (FACE) intervened for purposes of appeal and were denied by the District Court. Now the merits ruling and denial of FACE’s intervention are before the First Circuit.

On June 10, 2020, the Victim Rights Law Center, Equal Rights Advocates, Legal Voice, and Chicago Alliance Against Sexual Exploitation challenged the 2020 Title IX regulations as arbitrary and capricious under the Administrative Procedure Act. FIRE, joined by Speech First and the Independent Women’s Law Center moved to intervene as defendants. After the U.S. District Court for the District of Massachusetts denied intervention in a summary order on February 18, 2021, FIRE appealed this ruling to the U.S. Court of Appeals for the First Circuit, which affirmed. On July 28, the district court largely upheld the 2020 Title IX regulations, invalidating only one provision which prohibited testimony not subject to cross-examination. This merits ruling is on appeal in the First Circuit, with a briefing schedule yet to be set. Families Advocating for Campus Equality (FACE) and several students intervened for purposes of the appeal so they can retain their right to confront those who have alleged Title IX violations. After the district court denied FACE’s motion to intervene for purposes of appeal, FACE appealed this ruling. Thus both the merits ruling and the denial of FACE’s intervention are now before the First Circuit.

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 December 27, 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: The Court held a hearing on January 20, 2022 at 1:30 PM PST to address FIRE's motion to intervene and Defendants' motion to dismiss. On February 16, 2022 the Court dismissed Plaintiff's first amended complaint for lack of standing, giving them until March 18, 2022 to file another 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.