Article: Department of Education’s New Title IX Guidance Draws Lawsuit

Last September 7, in a speech at George Mason University in northern Virginia, Secretary Betsy DeVos announced the Department of Education (DOE) would soon abandon its current guidance, issued during the Obama administration, on how colleges should handle complaints of sexual discrimination, harassment or misconduct.

Fifteen days later, DOE followed through by issuing what it called interim guidance, which replaces a controversial “Dear Colleague” letter sent to colleges by DOE’s Office of Civil Rights (OCR) in April 2011 and further “questions and answers” guidance on sexual assault investigations promulgated three years later.

Both those now-rescinded documents were issued without formal notice-and-comment rulemaking; OCR says its Title IX efforts will not rely on either of those documents, but adds that its revised questions and answers issued on September 22 will not add to universities’ regulatory burden and will be subject to notice-and-comment rulemaking.

Significant changes in the guidance revised some of the most controversial elements in the Obama administration’s enforcement policies. The revised guidelines drop the requirement in the OCR’s 2011 guidance that college disciplinary hearings on sexual assault cases use the evidentiary standard of a preponderance of the evidence, meaning guilt seems more likely than innocence, no matter by how small a margin; instead universities will be allowed to either choose to continue that standard or instead change to the more demanding standard of clear and convincing” evidence of guilt, which a majority of colleges used before DOE disallowed it.

Another change in the interim guidance would let colleges use less formal methods, like mediation, for informally resolving appropriate cases. Also, backing away from OCR’s previous position that Title IX investigations typically should be completed within 60 days after a complaint is filed, the new interim guidance says there is “no fixed time frame” for finishing a Title IX investigation. The interim guidelines also include some provisions addressing criticism of the earlier Title IX guidance as deficient in protecting the due process rights of accused, such as providing access to the identity of accusers and the alleged misconduct.

Less than a month after DOE issued its new interim guidance, the agency and Secretary DeVos were sued over it in the federal court in Boston by three pseudonymous female students, alleged victims of sex-based discrimination covered by Title IX, and by Equal Means Equal, a Los Angeles-based anti-gender bias group.

Seeking to have the court temporarily and permanently enjoin the new guidance, the lawsuit attacks it as unlawful and arbitrary, and claims it violates Title IX in at least nine ways, including by setting more demanding rules for bringing complaints against sex-based discrimination than for other types of discrimination. The case, which also seeks to represent all women with similar complaints, further claims DOE’s interim guidance also contravenes the First Amendment, the Administrative Procedures Act and part of the Massachusetts state constitution. Equal Means Equal also says it plans to file similar lawsuits in other states.