Articles Posted in Title IX

The U.S. Supreme Court has denied the government’s emergency applications for partial stays of the preliminary injunctions against the new Title IX Final Rule while the appeals are pending in the Fifth and Sixth Circuits.  The preliminary injunctions are not nationwide, but apply only to the plaintiffs.

The government argued the challenged provisions of the rule should be severed so that the rest of the Final Rule could take effect. Those provisions are 34 C.F.R. §106.10, which defines sex discrimination, §106.31(a)(2), which addresses sex-separated spaces and prohibits schools from adopting policies that prevent a person from participating in an education program or activity consistent with their gender identity, and the definition of hostile environment harassment in §106.2.  The Court noted the lower courts had determined that the new definition of sex discrimination, including discrimination on the basis of sexual orientation and gender identity, affected many of the other provisions and could not readily be severed, at least at the preliminary stage.  The lower courts also noted that schools would have difficulty applying the Final Rule when parts of it were enjoined.

The government had the burden of showing that its severability argument was likely to succeed and that the equities favored a stay.  The Court concluded the government had not met that burden with the limited record and emergency applications.  The Court determined the government had not given it a sufficient basis to overturn the lower courts’ conclusions that the challenged provisions were intertwined with the other provisions or identified any specific provisions that were sufficiently independent.  In addressing the equities, the Court noted the Sixth Circuit had already expeditated the case and anticipated the Courts of Appeal “will render their decisions with appropriate dispatch.”

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The Department of Justice (“DOJ”) has requested a partial stay of the preliminary injunctions against the new Title IX Final Rule in two lawsuits involving a total of ten states. The requests to the U.S. Supreme Court involve the injunction applicable to the states of Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia in the lawsuit filed in the Eastern District of Kentucky and the injunction applicable to the states of Louisiana, Mississippi, Montana, and Idaho in the lawsuit filed in the Western District of Pennsylvania.  The DOJ asked the Court to issue stays to the extent the injunctions prohibit implementation of the portions of the Final Rule that were not challenged in the underlying lawsuits, arguing the plaintiffs had not challenged the “vast majority” of the changes made by the Final Rule.

The DOJ argued the district courts erred in enjoining the portions of the Final Rule that the plaintiffs had not challenged because of the principle that equitable relief is to be tailored to the alleged injuries and claims.

It also argued the courts erred by “enjoining Section 106.10’s clarification that Title IX prohibits discrimination based on gender identity.” It further argued that the plaintiff’s alleged injuries could have been redressed with an injunction of “Section 106.31(a)(2) and Section 106.2’s definition of hostile-environment harassment as applied to gender-identity discrimination.” Furthermore, it argued the inclusion of gender-identity discrimination in Section 106.10 was required by the Court’s decision in Bostock v. Clayton County.

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Two federal courts have granted preliminary injunctions enjoining the Department of Education (“Department”) from implementing or enforcing the new Final Rule, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance in certain states.

The States of Louisiana, Mississippi, Montana, and Idaho filed suit in the Western District of Louisiana, and filed motions for preliminary injunction and motions for stay to prevent the Final Rule from taking effect on August 1, 2024.  The States of California, Colorado, Delaware, Hawaii, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and the District of Columbia filed an amici curaie brief opposing the motions.  The court found the plaintiffs were likely to succeed on the merits that the Final Rule is contrary to the Administrative Procedures Act, violates the Free Speech Clause and the Free Exercise Cluse of the First Amendment, violates the Spending Clause, and is arbitrary and capricious.  The court also stated it showed “the abuse of power by executive federal agencies in the rulemaking process.” The court granted the motion for preliminary injunctions and enjoined and restrained the Department from implementing or enforcing the Final Rule and enjoined and restrained the Final Rule from going into effect on August 1, 2024, pending additional orders from the court.  This injunction only applies to the States of Louisiana, Mississippi, Montana, and Idaho.

The States of Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia filed suit in the Eastern District of Kentucky to enjoin and invalidate the Final Rule.  The Christian Educators Association International and a fifteen-year-old female student identified as “A.C.” were allowed to file an Intervenor Complaint.  In its opinion, the Eastern District of Kentucky stated “the Department would turn Title IX on its head by redefining ‘sex’ to include ‘gender identity.’”  The court concluded the Department exceeded its authority to promulgate regulations pursuant to Title IX because its interpretation conflicts with Title IX’s plain language.  The court also stated there were “serious First Amendment implications” with the Final Rule’s definition of sexual harassment, which the court determined could require educators to use student’s preferred pronouns, even if doing so conflicted with the educator’s own religious or moral beliefs.  The court further concluded the Department’s actions were arbitrary and capricious, stating the Department had not provided a reasoned explanation for departing from its previous interpretations or for leaving in place regulations that conflicted with the new requirements regarding gender-identity.

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It can be difficult for a student who has faced disciplinary action for alleged misconduct to successfully show a Title IX violation by the school in the investigation and disciplinary process.  Even if they cannot show sex-based discrimination, in some cases, the student may be able to show the school violated their due process rights.

A medical student at an Indiana university filed suit after he was expelled from the university.  He appealed to the Seventh Circuit when the federal court granted summary judgment in favor of the defendants.

According to the Seventh Circuit’s opinion, he was accused of physical abuse by a female student with whom he was romantically involved.  The Office of Student Conduct found him culpable and suspended him for a year.  The university placed conditions on his return.  The Student Promotions Committee for the medical school recommended expulsion, but the Dean rejected that recommendation.

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The Department of Education has finally released the final rule on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (“Final Rule”).  The Final Rule makes significant changes to the Title IX regulations that were previously amended under the Trump administration in 2020.

The Final Rule specifically provides that sex-based discrimination includes discrimination based on “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”  A number of lawsuits have already been filed challenging protections related to sexual orientation and gender identity.

The Final Rule includes a new definition of “sex-based harassment” and removes the current definition of “sexual harassment.”  The definition identifies and defines three types of sex-based harassment: quid pro quo harassment, hostile environment harassment, and specific offenses.  The specific offenses include sexual assault, dating violence, domestic violence, and stalking.

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The Washington Supreme Court has recently decided a case involving school discipline.  A Washington public school student filed suit after being suspended and not allowed to return to in-person school after the suspension was over.

The Court noted that students facing suspension are entitled to due process because they have a property interest in their educational benefits.  Students also have statutory protections in Washington.

RCW 28A.600.015 requires the superintendent of public instruction to adopt rules regarding the substantive and procedural due process rights of students.  The rules may allow a district to use informal due process procedures for short-term suspensions, if the superintendent determines that the students’ interests are adequately protected.  The law prohibits a suspension or expulsion from being indefinite.  Short-term suspension procedures apply for suspensions up to 10 consecutive school days.  Emergency removal must be converted to another form of corrective action within 10 school days if they do not end within that timeframe.  The law also prohibits schools from using long-term suspension or expulsion as discretionary discipline.

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The Department of Education submitted the “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance” final rule to the Office of Information and Regulatory Affairs (“OIRA”) for review on February 2, 2024, according to a government website.

The final rule is expected to undo many of the changes made in the 2020 final rule.  The new final rule has been delayed multiple times since the publication of the draft rule in July 2022.  The final rule was originally expected to be published in May 2023, but the Department of Education pushed that date back to October 2023 after receiving an exceptionally large number of comments during the public comment period.  It was subsequently delayed again, with a new anticipated publication date of March 2024.

Although the final rule has been submitted to OIRA, it still may not meet the expected March 2024 publication date.  According to Executive Order 12866, OIRA has 90 days to complete its review, but that timeframe may be extended.  Interested parties can request to meet with OIRA during its review.  Given the high number of public comments received during the comment period for the draft rule, there may also be significant interest in meeting with OIRA regarding the final rule.  It is therefore likely that the OIRA will not complete its review in time for the final rule to be published by March 2024.

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A student pursuing a claim against their school based on disciplinary action arising from a Title IX complaint may also seek a temporary restraining order or injunction to stop a suspension or expulsion while their case is pending.  A student recently sought to enjoin a suspension.

The medical student filed suit against his private New York medical school after he was suspended for 20 months following a finding he was responsible for sexual misconduct.  He alleged that the school’s adjudication of the complaint violated Title IX and New York City Human Rights laws.  He also made a breach of contract claim.  He moved for a temporary restraining order and preliminary injunction to enjoin the suspension and reinstate him.

According to the court’s opinion, the plaintiff and the complainant, identified by the court as Jane Roe, were both students at the school.  After the graduation formal, several people went to the plaintiff’s apartment on campus.  Jane Roe asked to spend the night because she was intoxicated.  The plaintiff gave her a blanket and pillow and offered her the couch.

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The Sixth Circuit recently determined a school can be liable in a Title IX case for not responding to social media activity by students.  A Nashville, Tennessee, high school student filed suit against the public school system, alleging it was deliberately indifferent to harassment related to her sexual assault and participation in the subsequent investigation.  She alleged the school system was deliberately indifferent before the assault and after the assault, and also alleged equal protection claims under 42 U.S.C. § 1983.

According to the Sixth Circuit’s opinion, a video was recorded of the plaintiff during a non-consensual sexual encounter and posted on social media and third party websites.  Other students harassed – the plaintiff.

The school’s Executive Principal learned about the video on the evening the incident occurred and the school set up a meeting with the plaintiff’s mother the next day.  The plaintiff and her family received harassment and threats from other students on social media. The mother made a list of students who made the threats.

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Representative Lisa McClain, Chairwoman of the Subcommittee on Health Care and Financial Services, and Representative Virginia Foxx, Chairwoman of the Committee on Education and the Workforce, recently initiated an investigation into the Department of Education’s proposed Title IX regulations. Their November 16, 2023, letter to Department of Education Secretary Miguel Cardona expressed concerns about changes to due process protections as well as inclusion of gender identity discrimination within the definition of “sex discrimination.” They are investigating whether outside groups had improper influence over drafting the proposed rules.

The letter stated that the proposed changes would “eviscerate the safeguards that ensured due process for all students.” The letter points to the proposed reinstatement of the “single-investigator model” as an example and states that federal and state courts had ruled against universities more than half the time in lawsuits filed under the 2011 policy when this model was previously in effect.

The letter also alleges that the proposed inclusion of “discrimination on the basis of gender identity” in the definition of “sex discrimination” would “harm women and girls across the country.”

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