After the publication of the long-awaited Title IX final regulations (Final Rule), detailed in our previous alert, it was only a matter of time before the regulations were challenged in court. Many advocacy groups expressed their intent to challenge the Final Rule if it adopted the controversial proposals published in the 2018 Notice of Proposed Rule Making (NPRM). And now, here it is: Plaintiffs Know Your IX, the Council of Parent Attorneys and Advocates, Girls for Gender Equity, and Stop Sexual Assault in Schools (Plaintiffs) filed a federal lawsuit—undoubtedly the first of many—that seeks to label these provisions of the Final Rule as violative of the Administrative Procedures Act, and enjoin the implementation of the Final Rule in anticipation of the imminent August 14, 2020 effective date (Effective Date).
The Plaintiffs contend that the following five provisions from the Final Rule are unlawful:
- Severe, Pervasive, and Objectively Offensive: The lawsuit challenges the new definition of sexual harassment, alleging that redefining sexual harassment as conduct that is "so severe, pervasive, and objectively offensive" results in the explicit exclusion of much of the misconduct covered by the 2011 Dear Colleague Letter, and the DOE's current view on harassing conduct on the basis of race, national origin, and disability—characteristics that are also protected under similar federal laws.
- Education Program or Activity: The lawsuit alleges that by mandating an educational institution to respond only to conduct that occurs in its "education program or activity," and requiring that conduct be perpetrated "against a person in the United States," the Final Rule effectively allows educational institutions to ignore many complaints of sexual harassment that occur off campus, including conduct that occurs in off-campus housing or during study abroad programs. Plaintiffs argue that this limitation fails to take into account the effect the harassing conduct has on the campus environment and on the survivors' education.
- Actual Knowledge: The lawsuit alleges that the Final Rule allows colleges and universities to ignore complaints of sexual harassment unless they are made to a limited and select number of school officials—namely, the Title IX coordinator or any official with authority to institute corrective measures on behalf of the institution. By narrowing the category of responsible employees, and, therefore, agents of the educational institution, Plaintiffs argue that the Final Rule correspondingly narrows the ability to demonstrate actual knowledge on behalf of the college or university—an essential element in a claim of sexual harassment under Title IX. In contrast, colleges and universities are required to respond to complaints made to a much broader class of employees for claims of harassment based on other protected characteristics. Plaintiffs note this inconsistency and argue that harassment on the basis of sex does not deserve this lesser consideration.
- Evidentiary Standard: The lawsuit challenges the provision of the Final Rule permitting—and in some cases requiring—educational institutions to apply the higher "clear and convincing evidence" standard—versus the easier "preponderance of the evidence" standard for determinations in hearings on sexual harassment complaints. Plaintiffs posit that this is another example of the Final Rule's inconsistency with the evidential standards that apply to hearings involving other forms of harassment committed by students. Plaintiffs' position continues by stating that in doing so without sufficient support, the DOE is allowing educational institutions to apply the "clear and convincing evidence" standard inconsistently, and is relieving educational institutions of the requirement of imposing remedial consequences when it is merely "more likely than not" that the respondent sexually harassed or assaulted a complainant.
- Deliberate Indifference Standard: Plaintiffs maintain that a deliberate indifference standard unlawfully limits educational institutions' obligation to respond to potentially harassing conduct by allowing them to act in a manner that is unreasonable, so long as they are not "deliberately indifferent." Plaintiffs further argue that the Final Rule heightens the level of indifference that an educational institution must exhibit before it violates Title IX, thereby imposing a more lenient standard than other federal laws that address harassment based on race, national origin, or disability.
Venable will continue to monitor the development of litigation challenging the Final Rule and will provide updates as significant and novel arguments are raised in court. In the meantime, educational institutions subject to Title IX should begin to prepare for the Effective Date by consulting with counsel to determine if they need to make any necessary revisions to their Title IX policies, retrain employees, or consider other implications of the Final Rule for their current protocols.
Educational institutions seeking guidance on Title IX policy or procedure updates, litigation risks, or any other questions should contact Doreen Martin at dsmartin@Venable.com, Allison Gotfried at abgotfried@Venable.com, or any other member of Venable's Higher Education or Labor and Employment Group.
*A special thank you to Sarah Fucci for her contribution to this article.
The case is Know Your IX, a Project of Advocates for Youth, the Council of Parent Attorneys and Advocates, Inc., Girls for Gender Equity, and Stop Sexual Assault in Schools v. Devos, et al., 20-cv-01224 (RDB) (D. Md. May 14, 2020).