On May 19, 2020, the Department of Education (“DOE”) published a Final Rule significantly amending the regulations that implement Title IX. The Final Rule changed the requirements for how schools handle Title IX complaints and investigations. Four victims’ advocacy groups and three individual plaintiffs filed suit in a federal court in Massachusetts to challenge the Final Rule. The plaintiffs argued in part that portions of the Final Rule were arbitrary and capricious.
In some circumstances, an agency is required to give a detailed explanation when it has a change in policy. An agency must provide a detailed justification for a change in policy that is based on factual findings that contradict the factual findings upon which the previous policy was based. Additionally, the agency must give a detailed justification if there were “serious reliance interests” on the prior policy. The agency then must weigh those reliance interests against the policy concerns.
The court noted that most of the plaintiffs’ arguments that the Final Rule was arbitrary and capricious were really policy arguments. The DOE had explained why the provisions supported its goal, why it wrote them the way it did, and why it rejected a number of alternatives. It also addressed commenters’ concerns.