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Ruling in lawsuit challenging September 2017 Title IX interim guidance opens door for more lawsuits by advocacy groups

A federal judge has granted the Department of Education’s motion to dismiss a lawsuit challenging ED’s Sept. 22, 2017 interim guidance, which rescinded its problematic April 4, 2011 “Dear Colleague” letter regarding how schools must respond to allegations of sexual misconduct under Title IX. But the ruling still has the potential to make the government vulnerable to a barrage of lawsuits from nonprofit organizations that previously looked unlikely to succeed.

Back in January, nonprofit advocacy organizations SurvJustice, Equal Rights Advocates, and the Victim Rights Law Center filed a lawsuit against ED, Secretary of Education Betsy DeVos, and Assistant Secretary for Civil Rights Kenneth Marcus. The groups argued that when ED rescinded the 2011 Dear Colleague letter and promulgated new interim guidance, it violated the Administrative Procedure Act by “adopt[ing] a policy that is arbitrary, capricious, and contrary to law.”

Readers may remember that a FIRE-coordinated 2016 lawsuit made the same argument about ED publishing the 2011 letter itself. (That case was voluntarily withdrawn earlier this year after the 2011 letter was rescinded.) We do not think that rescinding unlawful directives violates the APA.

The plaintiff organizations also argued that the 2017 actions by ED were ultra vires—that is, “in excess of their legal authority.” Finally, they argued that the defendants violated the Fifth Amendment because their decision to publish new guidance and rescind the 2011 letter was based on prejudice against women. The organizations wrote: “Defendants were motivated, at least in part, by their discriminatory—and baseless—gender stereotype that many women and girls lack credibility with regard to sexual harassment.”

In response, ED first claimed that the plaintiffs lacked standing — first, because “they have not alleged a cognizable injury,” and second, because they insufficiently demonstrated third party standing with respect to their their Fifth Amendment claim. The defendants also argued that the interim guidance wasn’t “final agency action” challengeable under the APA, and that the plaintiffs had failed to plausibly allege their claims of ultra vires action and discrimination.

Several aspects of the ruling on the defendants’ motion to dismiss were unsurprising. The court agreed that the interim guidance wasn’t challengeable under the APA because it is not an action “by which rights or obligations have been determined, or from which legal consequences will flow.” In other words, and in contrast to the 2011 Dear Colleague letter, the interim guidance didn’t create new mandates for schools; it simply explained ED’s interpretation of the law, and clarified that it would not be enforcing Title IX according to the previous administration’s interpretation of the law. Importantly, under the interim guidance, no school that had been in compliance with Title IX under previous ED documents would be non-compliant under the new interim guidance. Accordingly, the plaintiffs’ APA claim was dismissed with prejudice.

In dismissing the ultra vires claim without prejudice, the court simply stated that the plaintiffs made “wholly conclusory allegations” and that they hadn’t explained how the agency responsible for enforcing Title IX had acted outside its authority by explaining how it will enforce Title IX.

Finally, the court also dismissed the Fifth Amendment claim without prejudice, agreeing with the defendants’ contention that the plaintiff organizations were trying to assert others’ rights, not theirs, but the organizations had not adequately pleaded third party or associational standing. Again, this is the result FIRE expected. Had this ruling gone the other way, FIRE and similar organizations could simply file our own lawsuits against colleges and universities for violating students’ First and Fourteenth Amendment rights, even if no specific student participated in the lawsuit. Under such a ruling, the courts would face a wave of similar lawsuits from all sorts of advocacy groups who were not, themselves, directly injured by the various defendant institutions. This is exactly the result that standing rules are meant to prevent.

So it surprised us to see that the APA and ultra vires claims weren’t dismissed on standing grounds. Instead, the court accepted the plaintiffs’ argument that they were injured by the defendants’ actions because they caused “frustration of [the plaintiffs’] organizational mission[s]” and “diversion of … resources to combat” that frustration. The plaintiffs contended that the interim guidance makes it less likely that they can achieve their desired outcomes in cases of sex discrimination and sexual misconduct, and that because of this, students have been more hesitant to file complaints of sexual misconduct. The plaintiffs also argued that they have had to spend additional resources educating campus community members about the new guidance.

The same would be true, however, any time the government takes action that runs contrary to an advocacy organization’s goals. Indeed, under this rationale, FIRE could have simply sued ED ourselves to challenge the 2011 Dear Colleague letter, instead of working with a plaintiff whose case demonstrably hinged on the letter’s mandated standard of proof. As this month’s ruling illustrates, there would still be other hurdles to jump in cases like this. But considerable resources would have to be spent by both the executive and judicial branches on cases in which — as with the dismissed Fifth Amendment claim — an organization is actually trying to assert someone else’s rights. Again, standing requirements exist in part in order to prevent this.

In its analysis on this issue, the court relies heavily on a 1982 case from the U.S. Court of Appeals for the Ninth Circuit, El Rescate Legal Services, Inc. v. Executive Office of Immigration Review. There, the defendant agency allegedly “engage[d] in a policy and practice of using incompetent translators and of not interpreting many portions of immigration court hearings.” Since El Rescate aided non-English speakers, this practice directly interfered with the organization staff’s ability to do their job — not just to obtain a favorable result, but to even attempt to do so. The circuit court wrote, and this month’s ruling quoted:

The allegation that the EOIR’s policy frustrates [El Rescate’s] goals and requires the organizations to expend resources in representing clients they otherwise would spend in other ways is enough to establish standing.

In the 1999 case Project Sentinel v. Evergreen Ridge Apartments, a district court judge distinguished El Rescate from the one before him, and his reasoning is equally applicable to SurvJustice v. DeVos. At the outset, the judge referred to the same language that this month’s ruling relies on as “dictum”; that is, it’s not binding precedent because it’s not an essential part of the court’s holding. He went on to explain why, regardless, it is not applicable in cases like Project Sentinel (emphasis added):

[In El Rescate, t]he organization’s diversion of resources to litigation was the result of harm inflicted directly upon its ability to provide its services, not merely upon its abstract social interests or goals. Plaintiff’s reading of El Rescate ignores this critical distinction and would, as noted above, completely eviscerate Article III’s requirement of an injury in fact.


[P]laintiff must demonstrate that the defendants’ allegedly unlawful conduct somehow affected plaintiff’s ability to operate, thereby giving rise to the need to divert funds to litigation. In the present case, defendants’ alleged conduct did not obstruct plaintiff’s mission, it created plaintiff’s mission.

In other words, it gave the plaintiff organization more work to do. In the same way, ED’s 2017 guidance certainly creates more work for any advocacy group that opposes the content or ramifications of that guidance. But ED hasn’t impeded the plaintiff organizations’ ability to work towards their goals the way the defendant agency in El Rescate allegedly did by deliberately blocking communication between the organization and its clients. The difference is in whether the agency is altering an organization’s likelihood of ultimate success in its mission or whether it’s hindering the organization’s ability to even try to succeed.

It’s not yet clear whether SurvJustice, Equal Rights Advocates, and Victim Rights Law Center will amend their complaint in response to this ruling, or whether ED will publish new proposed Title IX regulations that would arguably moot the case. If the former, the case will continue to be one to watch closely. If the latter, we look forward to participating in the notice-and-comment process along with the plaintiffs and everyone else who will be affected by the new regulations — just as we all should have had the opportunity to do in 2011.

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