August 11, 2021Client Alert

Title IX Regulations Largely Upheld with One Significant Caveat

On July 28, 2021, the United States District Court for the District of Massachusetts upheld twelve of the thirteen challenged Title IX provisions, which were promulgated by the Department of Education (the “Department”) and went into effect on August 14, 2020. The Court concluded one significant provision—prohibiting an institution from considering evidence not subject to cross-examination—was arbitrary and capricious. The regulations effective in 2020 established new standards for actionable sexual harassment, new procedures for Title IX investigations, and procedural safeguards for Title IX complaint respondents.

Organizations that focus on advocating on behalf of victims of sexual violence and three individuals brought suit challenging the Title IX regulations, alleging they violated the Administrative Procedures Act (“APA”), which requires federal agencies with authority to promulgate regulations under a statute to abide by certain standards, and the Fifth Amendment’s Equal Protection Clause.

The Plaintiffs challenged thirteen provisions of the APA on five different grounds as follows:

  • Count I: thirteen provisions are not in accordance with established practice and procedure and undermine the purpose of Title IX;
  • Count II: thirteen provisions are arbitrary and capricious;
  • Count III: six provisions exceed the Department of Education’s statutory authority;
  • Count IV: five provisions are not logical outgrowths of the Proposed Rule; and
  • Count V: thirteen provisions are discriminatory on the basis of sex in violation of the Fifth Amendment’s Equal Protection Clause.

The Court first considered whether any of the plaintiffs had Article III standing to bring suit, meaning whether any of the plaintiffs had a sufficient personal stake in the case. The Court concluded only one of the individual plaintiffs and one of the advocacy organizations had standing to bring suit.

The Court found one provision—34 C.F.R. § 106.45(b)(6)(i), prohibiting decisionmakers from considering any statement made by a party or witness not subject to cross-examination when making a finding of responsibility—was arbitrary and capricious and therefore violated the APA (Count II). For instance, an institution would not be able to consider written or oral statements from a witness who was unable to attend the live hearing due to scheduling reasons or refusing to participate. More significantly, institutions could not consider statements made by a respondent (even ones admitting responsibility) if the respondent refused to participate at the live hearing—which a respondent is free to do to avoid potential self-incrimination. Further exacerbating the already troublesome consequences, the Court concluded that the provision at issue opens the door to attempts to dissuade witnesses from attending the live hearing so that their statements will not be considered. 

The Court reasoned that the Department failed to consider these consequential outcomes of the provision. In fact, the Court noted that this provision could render the live hearing, which is intended to be the most significant part of the investigation, a “remarkably hollow gesture.”

The Court denied the Plaintiffs’ challenges to the twelve other provisions. As a result, the Court left the following provisions intact:

  • 106.30: defining relevant terms, including the definitions of “sexual harassment,” “formal complaint,” and “supportive measures”
  • 106.44(a): outlining an institution’s response to sexual assault, its procedures, safeguards, and deliberate indifference standard of conduct
  • 106.45(b)(1)(iv): establishing a presumption of innocence until the end of the Title IX proceedings when a finding of responsibility is made
  • 106.45(b)(1)(v): requiring the Title IX process have reasonably prompt time frames for conclusion of the process
  • 106.45(b)(1)(vii): allowing institutions to adopt a preponderance of evidence standard or a clear and convincing evidence standard for findings of responsibility
  • 106.45(b)(3)(i): providing for mandatory dismissal of formal complaints under certain circumstances
  • 106.45(b)(3)(ii): providing for discretionary dismissal of formal complaints under certain circumstances
  • 106.45(b)(5)(iii): allowing both the complainant and respondent to discuss the allegations under investigation and to gather and present relevant evidence
  • 106.45(b)(6)(ii): requiring live hearings at postsecondary institutions but making them discretionary at elementary and secondary schools
  • 106.6(h): providing the provisions with preemptive effect over state and local laws
  • 106.71(b)(1): exercising rights protected by the First Amendment does not constitute unlawful retaliation
  • 106.71(b)(2): establishing it is not unlawful retaliation to find an individual responsible for a code of conduct violation if they make a materially false statement in bad faith in the course of a Title IX investigation

In their Fifth Amendment Equal Protection claim, the Plaintiffs claimed thirteen provisions treated allegations of sexual harassment less favorably than allegations of harassment based on other protected classes because the provisions stereotyped women and girls as lacking credibility when reporting allegations of sexual harassment. The Court noted that the final regulations are gender neutral and that nothing in the record demonstrated that female complainants or respondents were treated less favorably than male complainants or respondents. The Court was not persuaded by the Plaintiffs’ attempts to compare sexual harassment under Title IX to other forms of harassment under other statutes noting, “[t]he Fifth Amendment protects against unequal treatment among classes of individuals, not among classes of discrimination.”

While all but one of the challenged provisions survived the lawsuit, the Biden Administration has announced it expects to issue a new rule in May of 2022 to replace the 2020 regulations. In the meantime, as a result of the Court’s ruling, the Department must reconsider the provision that prohibits the consideration of evidence not subject to cross-examination and explain the purpose of this prohibition if it seeks to continue to require the exclusion of such evidence. 

Michael Best will be monitoring updates from the Biden Administration as well as other ongoing litigation challenging the Title IX regulations. Please reach out to one of the above authors or your Michael Best attorney for additional guidance.


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