Author: saveadmin

by: Gail Norris, Senior Counsel
Bond Schoeneck & King PLLC

Two federal court judges refused to issue a preliminary injunction to stop the new Department of Education’s Title IX rule (the Rule) from taking effect on its August 14, 2020 effective date. In the meantime, there remain four lawsuits¹ pending against the Department of Education challenging the Rule on a number of legal grounds. Although the legal standards for issuing a preliminary injunction are different than those used to reach a decision on the merits of a suit, the decisions on preliminary injunction give some indication of the uphill battle the pending lawsuits face.

New York Decision

In State of New York, et. al. v. United States Department of Education, et. al., the plaintiffs brought suit alleging that the Rule violated various provisions of the Administrative Procedures Act and contended that the Department of Education’s (DOE) actions in adopting the Rule were “arbitrary and capricious.” The plaintiffs moved for a preliminary injunction to stop the implementation of the Rule while the suit is pending.

In his decision, U.S. District Judge John Koeltl, Southern District of New York, reiterated that the well-established standards for the issuance of a preliminary injunction including that the plaintiffs show that they are likely to succeed on the merits. As such, Judge Koeltl gave us a look at his view of the merits of the underlying claims in the suit. In his decision, Judge Koeltl serially addressed the plaintiffs’ complaints about the Rule’s definition of sexual harassment, its prescriptive grievance process, its limited definition of “program or activity,” and plaintiffs’ claims that the DOE generally failed to justify or adequately consider other aspects of the Rule. The decision echoes many of the comments discussed in the lengthy preamble to the Rule about each of the plaintiffs’ claims.

In the end, the judge concluded that the reasons provided by the DOE for changes in past policies and the rationale for the provisions of the Rule were adequate to satisfy the court that the department’s rulemaking was not arbitrary and capricious. As Judge Koeltl noted, while an agency must show that there are good reasons for its new policy, it need not show that the reasons for the new policy are better than the reasons for the old one. As such, the court determined that the plaintiffs did not show that they were likely to succeed on the merits of their claims and declined to grant an injunction.

Attorneys General Decision

In Commonwealth of Pennsylvania, et. al. v. Elisabeth Devos, et. al., 17 states and the District of Columbia sued challenging the Rule and also moved for a preliminary injunction to stop the implementation of the Rule pending judicial review of the suit.

In his decision, U.S. District Judge Carl Nichols (D.C.) also cited the standards for the issuance of a preliminary injunction, including that the plaintiffs show that they are likely to succeed on the merits. Judge Nichols’ decision, too, gave us some insight to his view of the merits of plaintiffs’ claims in the underlying suit.

Plaintiffs in this suit proffered some claims that were the same as those in the New York case. These include claims that the definition of sexual harassment was improper, that the Rule’s requirement that the harassment be connected to an educational program and activity was ill considered, and that several aspects of the grievance process were objectionable. In addition, the plaintiffs added claims (1) that the mandated grievance process in K-12 schools exceeded the department’s authority and was arbitrary and capricious by impermissibly intruding into the school’s disciplinary procedures and failing to account for the unique environment of K-12 schools, and (2) that the Rule impermissibly restricted schools from taking a more proactive approach to sexual harassment by investigating a broader array of allegations.

Judge Nichols reviewed many of the arguments (also discussed in the preamble to the Rule) on each of these issues. The judge concluded that, while it may be that the Rule is overly prescriptive and that it might be better to fashion a rule that grants more flexibility to investigate, make determinations and discipline sexual harassment, the court is not supposed to substitute its judgment for that of the DOE to decide whether another alternative is better. Rather, it can only decide if the Rule is arbitrary and capricious.

What the Decisions Mean for the Pending Lawsuits

Both decisions refer to the well-developed rationale expressed by the DOE in the 2,000-page preamble to the Rule. Most of the issues raised by the plaintiffs in the pending suits were the subject of some of the 125,000 written comments submitted to the department when the proposed rule was published. The department’s use of the preamble to lay out the issues, discuss the pros and cons raised by the comments and articulate a reasoned justification for the final Rule’s provision has served it well in the defense of these suits. As Judge Koeltl wrote in his decision, the comments discussed in the preamble “showed that there were bitter disputes about which policy was the most appropriate to implement in almost every aspect of the Rule’s provisions.” Plaintiffs’ arguments in their lawsuits repeat one side of the disputes referenced in the judge’s comments.

The legal standard that a court will used in addressing the claims in the pending lawsuit is different than, and largely not as burdensome as, the standard imposed by the courts in deciding whether to issue a preliminary injunction. The legal standard used in most of the plaintiffs’ claims in the existing lawsuit is whether the DOE was “arbitrary and capricious.” The decisions of Judge Koeltl and Judge Nichols give us some early signals that the rationale laid out by the DOE in the preamble of the Rule for the most controversial aspects of the Rule is likely to withstand the challenge that the department’s rulemaking was arbitrary and capricious.

Still, there is uncertainty about how the courts in the remaining two lawsuits might view similar claims or whether the courts will reach a different conclusion after a fuller briefing on the merits. The resolution of these cases is likely to take months. In the interim, a presidential election will occur that could have further impact on the Rule.

Educational institutions subject to the Rule might consider what their policies should look like should all or parts of the Rule be overturned by a court or revoked under a new administration so that they can move quickly to eliminate those portions of the Rule that they find most troublesome.

¹ In addition to the lawsuits brought by the State of New York and by Attorneys General from 17 states that underlie the preliminary injunctions requested and discussed in this memorandum, suits have also been brought against the U.S. Department of Education by the American Civil Liberties Union and the National Women’s Law Center.

https://www.bsk.com/higher-education-law-report/two-courts-deny-preliminary-injunction-against-the-new-title-ix-rule-are-these-decisions-harbingers-of-whatrsquos-to-come

https://www.jdsupra.com/legalnews/two-courts-deny-preliminary-injunction-38571/

Trump’s Education Department has restored some balance to campus treatment of accused violators, but colleges are trying to get around the new rules.

August has been a big month for Title IX, the federal law banning sex discrimination at schools receiving federal funds. Two federal district courts allowed the Trump administration’s new Title IX regulations to take effect on schedule (August 14), and at least two schools, Princeton and Tulane Universities, announced they are creating two disciplinary tracks for campus sexual-misconduct complaints — one reflecting federal Title IX policy and the other reflecting the school’s own policy. Given the history of Title IX and the politics of campus sexual-assault allegations, this “two-track” approach should be closely watched.

Title IX was an uncontroversial 1972 ban on sex discrimination in education that became controversial when it was used to fund women’s college sports — and defund men’s — and was later applied to sexual misconduct, considered as a form of sex discrimination. This latter development was originally limited to quid pro quo propositions — high grades in exchange for sex, for example — but later was extended to the idea of “hostile environment” sex discrimination and then grew to include even the crime of violence, or sexual assault, as sex bias. These expansions came mostly from bureaucrats in the Clinton and Obama Education Departments — with the help of a few liberal judges — but were well received by feminists on campus, especially in the Title IX office, which quickly became known as the “campus sex police,” eagerly investigating and punishing any student accused of sexual assault. Wrongly accused students then began to successfully sue their schools, claiming due-process violations or contractual breaches of student handbooks when Title IX offices presumed guilt, withheld evidence, and banned the live questioning of witnesses or accusers.

The new regulations restore balance to these Title IX proceedings by mandating basic due process, such as the presumption of innocence, the right to see evidence, and, in higher education, the right to a live hearing to question accusers and cross-examine witnesses, among other things.

They also restore an objective and more education-related definition of “hostile environment” sex discrimination, based on a 1999 Supreme Court case, Davis v. Monroe County Board of Education, which found that Title IX holds schools responsible only for “conduct on the basis of sex” that is “so severe, pervasive and objectively offensive” that it effectively denies educational access. The new regulations also include two other categories of prohibited conduct — quid pro quo propositions and sexual assault.

Opponents of the new regulations quickly challenged them in court, however, claiming they were arbitrary and capricious and therefore should not take effect. Judges in New York and D.C. last week disagreed, finding that Trump’s Education Department had considered public input and had explained its rationales (the rule was issued with 2,000 pages of comment).

The court complaints (four were filed) object to the Davis standard, arguing that some acts may be severe but not pervasive — what if a student is shown pornography but only once? — while other acts may be pervasive but not initially severe, such as recurring taunts of a sexual nature. Must a student wait until educational access is “effectively denied” before complaining to the Title IX office?

Actually, yes. Because Title IX is quintessentially a guarantee for educational opportunity and not a sex-crimes law, it should apply only when educational opportunity is violated. In effect, the new regulations help bring Title IX back to that original purpose. (In fact, because the last category of prohibited conduct, sexual assault, presumes that such opportunity is violated, it deserves more scrutiny by the courts and others.) Schools are free, however, to ban taunts or pornography or any other “conduct on the basis of sex” in their own student codes, and now Princeton and Tulane have done just that: They are devising their own sexual-misconduct policies, presumably with their own definitions, separate from Title IX.

Is this a move to evade the new due-process requirements? At Princeton, for example, its separate track allows for written cross-examination of witnesses, while the Trump regulations require a live hearing with in-person questioning of parties and witnesses, stating, “Such cross-examination at the live hearing must be conducted directly, orally and in real time by the party’s advisor of choice.”

If evasion is the intent of such schools, they should realize that this probably won’t work:

While not every complaint is a Title IX complaint, every school program, including disciplinary procedures, must comply with Title IX. And due-process deprivations can themselves become a Title IX issue if they favor one sex. One court explained: “Title IX . . . is understood to ‘bar the imposition of university discipline where gender is a motivating factor in the decision to discipline.’” In effect, if procedural problems suggest sex bias, even on a non–Title IX disciplinary track, an accused student can invoke Title IX as a shield to ensure evenhandedness.

But even more simply, courts are increasingly requiring schools to provide due process, including live hearings in sexual-misconduct cases, as a matter of fundamental fairness rather than regulatory mandate. That was the result of Doe v. University of the Sciences in Philadelphia, a Third Circuit case decided earlier this year: The court there found that procedural deficiencies violated both Title IX and the school’s student handbook, which guaranteed “fair” and “equitable” treatment of students. The court additionally noted that fairness was also required by state case law and the Pennsylvania Administrative Code, which governs private as well as public institutions. The court insisted that “basic fairness in the context of sexual assault investigations requires that students accused of sexual assault receive these procedural protections.” For the Third Circuit, which also covers Princeton, N.J., such “procedural protections” include live hearings and cross-examination. Princeton’s general counsel should have a look (will written cross-examination suffice?).

Of course, schools would do well to include due-process protections in all of their disciplinary tracks; but given the seriousness of sexual misconduct and the history of Title IX abuses, discipline on this second track will be closely watched for fundamental fairness — at Princeton and Tulane and elsewhere.

Teresa R. Manning is the policy director at the National Association of Scholars and the author of its report Dear Colleague: The Weaponization of Title IX, scheduled for release in September.

Title IX and Targeting the Two-Track Approach

If schools follow the Trump administration’s new Title IX rules, survivors no doubt will be reluctant to report sexual harassment and assault. While some schools are accepting the rules and adopting restrictive policies, others are finding creative ways to get around the rules by designing policies that will minimize these harmful effects. We examined a few of these new policies—here’s what we found.

Read More Here: https://msmagazine.com/2020/08/14/how-some-universities-are-bypassing-trumps-new-title-ix-rules/?utm_source=email&utm_medium=social&utm_campaign=SocialWarfare