Second district court denies motion to preliminarily enjoin implementation of new Title IX regulations

August 13, 2020

Yesterday, Judge Carl J. Nichols of the U.S. District Court for the District of Columbia denied a motion for preliminary injunction made by the Attorneys General of Pennsylvania, sixteen other states, and D.C. to preliminarily enjoin the U.S. Department of Education’s new Title IX rules

Feeling some deja vu? That’s because a federal judge in New York did the same thing on Sunday in a similar case brought by the Attorney General of New York State. With the new Title IX regulations set to take effect tomorrow, Judge Nichols’s ruling plays a critical role in ensuring students will be treated fairly in campus disciplinary proceedings going forward.

Feeling some deja vu? That’s because a federal judge in New York did the same thing on Sunday in a similar case brought by the Attorney General of New York State.

Pennsylvania, New Jersey, California, Colorado, Delaware, Illinois, Massachusetts, Michigan, Minnesota, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and D.C. filed their lawsuit to challenge the regulations on June 4. Among other things, the plaintiffs argued that the new regulations are “arbitrary and capricious,” and filed a motion for preliminary injunction on June 23. (On July 6, the court granted a motion to intervene as defendants by FIRE, Independent Women’s Law Center, and Speech First.)

Judge Nichols cited Sunday’s New York decision multiple times in concluding that the plaintiffs have not demonstrated a likelihood of success on the merits of the case — a key factor in determining whether to grant a preliminary injunction. In assessing whether the regulations are arbitrary and capricious, he stated that “[t]he Court’s role is limited to confirm[ing] that the agency has fulfilled its duty to examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made” (internal quotations omitted). 

In other words, the court isn’t supposed to decide whether agency rules are the best rules or even particularly good rules — just whether the Department of Education has put forth a justification for them that makes sense. FIRE is glad to see the court acknowledge that ED has done so.

For example, the plaintiffs contended that the new regulations’ definition of student-on-student (or peer) sexual harassment is arbitrary and capricious in that it is unjustifiably narrow. The court rejected this argument, writing:

[B]y aligning the hostile environment prong with the Davis [v. Monroe County Board of Education] standard and adding a separate sexual violence prong, the Department exercised its authority to address “the tension between student and faculty freedom of speech[] and regulation of speech to prohibit sexual harassment” while “prohibit[ing] harassing and assaultive physical conduct.” … The Department reasoned its definition should “allow[] for the social and developmental growth of young students learning how to interact with peers in the elementary and secondary school context [and] foster robust exchange of speech, ideas, and beliefs in a college setting.” … That Plaintiffs disagree with the Department’s decision to factor in developmental considerations in this way … certainly does not render the Rule arbitrary and capricious.

Additionally, as Judge John G. Koeltl wrote Sunday and as Judge Nichols reiterated yesterday, “turning to that Supreme Court authority could hardly be characterized as ‘arbitrary or capricious.’”

The plaintiffs also challenged the regulations’ requirement that institutions provide several procedural safeguards throughout the disciplinary process, including live hearings with cross-examination conducted by advisors. Again, Judge Nichols wrote that ED has articulated a rational justification for these provisions, as it believes “consistent application” of these safeguards will “improve perceptions that Title IX sexual harassment allegations are resolved fairly, avoid injection of sex-based biases and stereotypes into Title IX proceedings, and promote reliable outcomes.” Accordingly, he ruled, those provisions are not arbitrary and capricious.

Like Sunday’s decision, the denial of a preliminary injunction in this case is an important step in protecting student free speech and due process rights. But there are still many steps ahead in these two cases and the two others challenging the new Title IX regulations. Of course, we’ll continue to provide updates as they develop.


Cases:  FIRE defends Title IX regs in court: Pennsylvania et al. v. DeVos U.S. Department of Education enacts new Title IX regulations requiring procedural safeguards in campus disciplinary hearings, adopts Supreme Court sexual harassment definition