On November 1, 2019, a federal judge granted a judgment in favor of the United States Department of Education (“Department”) in a lawsuit brought by three nonprofit advocacy groups, who sued to vacate the Department’s policy regarding the enforcement of Title IX of the Education Amendments of 1972 (“Title IX”) stated in its September 2017 Guidance documents. In granting the Department’s summary judgment motion, the court held that the challenged agency action is not “final” for purposes of judicial review under the Administrative Procedures Act (“APA”). Survjustice Inc., et al. v. Elisabeth Devos, et al., Case No. 18-cv-0535 (N.D. Cal. 11/1/19).
On September 22, 2017, the Department issued a “Dear Colleague Letter” rescinding its April 4, 2011, “Dear Colleague Letter on Sexual Violence” and a detailed set of explanatory questions and answers published in April 2014. That same day, the Department also issued questions and answers on “Campus Sexual Misconduct” (collectively “2017 Guidance”). The 2017 Guidance withdrew the “new mandates” imposed by the 2011 letter and 2014 Q&A “related to procedures by which educational institutions investigate, adjudicate, and resolve allegations of student-on-student sexual misconduct.”
As noted in the lawsuit, in rescinding the 2011 Dear Colleague Letter and 2014 Q&A, the 2017 Guidance stated eight substantive changes:
- First, the 2017 Guidance returns to the pre-2011 policy of giving schools discretion over the standard of proof applied in evaluating evidence, permitting schools to use either the “preponderance” or a “clear and convincing” standard.
- Second, regarding the appeals process, the 2017 Guidance allows schools to “choose to allow appeal (i) solely by the responding party; or (ii) by both parties, in which case, any appeals procedures must be equally available to both parties.”
- Third, the 2017 Guidance allows for voluntary informal mediation if the parties have received full disclosure of the allegations and options for formal resolution and if the school determines that the Title IX complaint is appropriate for such a process.
- Fourth, the 2017 Guidance rescinds the 2014 Q&A’s mandate that schools are required to take interim measures during the investigation of a complaint, and instead returns to the Department’s 2001 Guidance providing that schools may take such measures.
- Fifth, the 2017 Guidance does not recognize the 2014 Q&A’s 60-day benchmark for “prompt” investigations in typical cases and does not prescribe a fixed time frame for the completion of a Title IX investigation.
- Sixth, the 2017 Guidance states that an institution does not have a duty under Title IX to address an off-campus incident of alleged harassment that does not involve a program or activity of the school. Conversely, the 2014 Q&A provided that schools must process all complaints of sexual violence, regardless of the location, and must consider the effects of off-campus conduct whether there is a hostile environment on campus or in an off-campus education program or activity.
- Seventh, the 2017 Guidance provides that schools should provide notice to the accused of the parties involved in the complaint once it decides to open an investigation that may lead to disciplinary action. This differs from the 2014 Q&A, which provides that if a school determines that it can respect a student’s request not to disclose his or her identity to the accused student, it should take all reasonable steps to respond to the complaint consistent with the request.
- Eighth, the 2017 Guidance appears to differ from the rescinded Guidance in that it does not expressly prohibit questioning about the complainant’s sexual history with anyone other than the accused student, which the 2014 Q&A noted should not be permitted.
The plaintiff advocacy groups alleged that the Department defendants violated the APA because the 2017 Guidance constitutes final agency action and is arbitrary and capricious. The Department defendants disputed both contentions. The parties filed cross-motions for summary judgment, and the court ruled in the Department’s favor for the reasons addressed below.
An applicant for federal funding from the Department must sign an “assurance of compliance” indicating that its operation of education programs or activities will comply with Title IX and its implementing regulations. The parties disputed whether the assurance requires compliance with the 2017 Guidance at the risk of termination of federal funding.
The Department submitted a sworn declaration from a former official of its Office for Civil Rights (“OCR”) attesting that if OCR initiates an enforcement action relating to a school’s assurance, it would proceed under Title IX and its implementing regulations, not the 2017 Guidance. The declaration stated that OCR does not consider the 2017 Guidance binding upon assurance signatories.
The plaintiffs countered that schools felt compelled to change their policies to align with the 2017 Guidance. They also cited to pre-2017 Guidance resolutions agreements between schools and OCR stemming from OCR’s informal resolution process in response to Title IX complaints and following OCR’s investigation. The court, however, ruled that plaintiffs were mistaken because the resolution agreements do not reflect administrative enforcement actions premised on violations of the 2011 or 2014 Guidance.
The court ruled that the failure to comply with the 2017 Guidance will not result in potential termination of federal funding. In the absence of any legal consequences, the court concluded that the 2017 Guidance does not constitute a final agency action, a necessary element for the plaintiff to prove their APA claim.
The ruling leaves two important takeaways for colleges and universities. First, many schools have proceeded on the assumption that a failure to adhere with the 2017 Guidance poses a real risk of an enforcement action, which could include the withholding of funding as a potential consequence. The court held to the contrary, deeming the 2017 Guidance as not a finalized rule through which enforcement actions are taken. Certainly, schools should carefully consider and implement the aspects of the 2017 Guidance that promote effectiveness and efficiencies in their prompt and equitable investigation and adjudication of sexual misconduct student-on-student complaints.
Second, the court’s conclusion that the 2017 Guidance does not equate to a final agency action avoided the need for a judicial review of whether its provisions are arbitrary and capricious. The plaintiff advocacy groups’ substantive contentions are likely a precursor of legal challenges to come in the future. Upon the Department’s finalization and formal issuance of its regulations governing sexual misconduct, we should expect a flurry of lawsuits challenging their legality, bringing to the judicial forefront a substantive review of the finalized regulatory action.