State Attorneys General Bring Challenges Against New Title IX Regulations

June 8, 2020

By: Mallory A. Campbell, Peter A. Jones, Jane M. Sovern, and Philip J. Zaccheo

On May 6, the U.S. Department of Education (Department) released final regulations under Title IX. These regulations significantly change how higher education institutions, and to a lesser extent, school districts, must respond to sexual assault and harassment on campus.

On June 4, two lawsuits challenging these final regulations were filed by a total of 19 states against the Department and Secretary of Education Betsy DeVos, attempting to enjoin them from taking effect on August 14, 2020. One suit was brought by 18 attorneys general¹ in the District of D.C. and the other by the State of New York in the Southern District of New York. 

These lawsuits claim that the Department “radically and unjustifiably amended” Title IX regulations by “strip[ping] existing protections for students and others targeted for and victimized by sexual harassment; invent[ing] new rights for individuals accused of sexual harassment…and impos[ing] onerous new procedural requirements.” 

These lawsuits also complain of the “impracticable effective date,” which gives institutions less than three months to comply with new regulations that will require institutions to “completely overhaul their [Title IX] systems.” 

The complaints argue that the implementation of the final regulations violates the Administrative Procedure Act for four reasons. First, the Department exceeded its statutory authority by imposing burdensome procedural requirements. Second, the Final Rule is contrary to law because it narrows the protections afforded to students under Title IX and conflicts with other federal laws. Third, the Final Rule is arbitrary and capricious because it (1) fails to justify the Department’s departure from decades of settled policy; (2) fails to adequately consider the substantial harms to educational institutions, their students and employees, and the general public; and (3) fails to justify the contravention of the Department’s longstanding policy of applying the civil rights laws it enforces in a consistent manner. Lastly, the Department failed to give adequate notice to the public for certain provisions that were not included in the Proposed Rules, including the preemption provision. 

These lawsuits join an earlier challenge brought by the American Civil Liberties Union (ACLU) on behalf of four organizations that advocate for sexual assault survivors in the District of Maryland.

At this time, institutions should proceed with the expectation that these regulations will take effect on August 14, 2020. We will keep you updated with further developments. 

If you have any questions about the information presented here or any Title IX related issues, please contact Bond’s Title IX Task Force, any attorney in the Higher Education practice, or the attorney in the firm with whom you are regularly in contact. 

¹ Attorneys general from California, Colorado, Delaware, the District of Columbia, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.