A federal judge ruled Wednesday that new Title IX regulations relating to sexual assaults on college campuses need to be adjudicated in court but can remain in place before trial.
That rule, which goes into effect Friday, will change what actions are defined as sexual assaults on college campuses. If a complainant reports conduct that doesn’t satisfy the rule’s definition, a university cannot treat that claim as a formal report and cannot launch a Title IX investigation into it.
Previous Title IX requirements had a lower standard to trigger investigations into misconduct allegations, with the bar set at “unwelcome conduct of a sexual nature.” Under the new rule created by Betsy DeVos’ Education Department, complaints must either involve unwelcome conduct that is “so severe, pervasive and objectively offensive” it denies a person access to educational opportunities; involve a school employee conditioning education benefits on unwelcome sexual conduct; or meet definitions of stalking, dating violence, domestic violence and sexual assault.
The new rule also does not set resolution dates for cases, whereas old provisions required matters to be resolved in 60 days.
Pennsylvania and 17 other states asked for an injunction, but U.S. District Judge Carl Nichols turned them down Wednesday, saying they failed to prove they would be harmed if the rule goes into effect as planned. If conduct falls outside of the rule’s definition, schools can still “address and discipline such behavior through their own codes of conduct,” the 31-page opinion states.
Among other challenges, the states complained about the rule’s language specifying that sexual harassment must be in an “education program or activity,” arguing this narrow definition left out off-campus harassment, which could also affect an educational environment.
“The operative inquiry is not where the sexual harassment occurred, but rather, whether it occurred at an operation ‘over which the recipient exercises substantial control over both the respondent and the context in which the sexual harassment occurs,’” Nichols wrote [emphasis in original]. “Here, the Final Rule is rooted in the text of Title IX itself and the Court cannot supplant the Department’s view of its own authority with Plaintiffs’ preference for a broader one.”
Confirmed to the bench in Washington last year, Nichols also rejected various arguments from states that say implementing a grievance process for Title IX complaints would be arbitrary and capricious because of the process’ interference in a school’s unique environment. For example, such formal procedures, “are not appropriate across the board,” they argue, especially at younger developmental stages where “formality may interfere with the educational role of discipline.”
The Department of Education had moved, however, to supplement many formal processes of Title IX reporting, by excluding them from live hearing requirements, extending reporting ability to any K-12 employee and other safeguards, Nichols wrote.
“It may be that the Final Rule is overly prescriptive and that a Rule that grants Plaintiffs more flexibility to administer discipline would more properly balance the mandate to effectuate Title IX and the needs that are unique to the K-12 environment,” Nichols wrote. “But the Court, of course, ‘is not to substitute its judgment for that of the agency’ … nor to ask ‘whether a regulator decision is the best one possible or even whether it is better than the alternatives.’”
The Trump-appointed Nichols also rejected states’ argument that it is arbitrary to punish localities, through restricting federal funding, for adopting a broader definition of sexual harassment. Nichols wrote the rule appeared “rooted in Title IX’s grant of authority to the Department to issue regulations that effectuate the statute.”
States also argued against a Friday start date, noting the date was extended due to the global Covid-19 pandemic. The states contended they need more time as policies require revision to align with the new rule, and staff and stakeholders need to be notified. The final rule was issued in May.
“The Court recognizes the obvious seriousness of the Covid-19 pandemic; the fact that the pandemic has presented a series of serious and difficult questions about whether, to what extent, and how school activities will resume in the fall,” Nichols wrote. “But the Department considered the pandemic as well as the other concerns raised by commenters in the Final Rule and the Court cannot conclude that Plaintiffs are likely to prevail in demonstrating that the August 14, 2020 effective date is arbitrary and capricious.”
DeVos called the ruling a “victory for students.”
“With yet another failed attempt to block our historic Title IX Rule, we can now look forward to it taking effect this Friday, requiring schools to act in meaningful ways to support survivors of sexual misconduct without sacrificing important safeguards to protect free speech and provide all students with a transparent, reliable process,” DeVos said in a press release.
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