2021 Update
Received support for two lawsuits Equal Rights Advocates v. DeVos and Victim Rights Law Center v. DeVos.
The NWLC’s case, Equal Rights Advocates v. DeVos, brought with co-counsel from Democracy Forward and filed in the Northern District of California in 2018, challenged an interim Guidance issued in 2017 by the Department of Education that required schools to implement mandates for survivors of sexual harassment with respect to reporting incidents of sexual harassment. This interim Guidance was followed with a Notice of Proposed Rulemaking in November 2018, which sought to codify many of the aspects of the interim guidance and added new provisions, including requiring schools to dismiss many allegations of sexual harassment absent any investigation whatsoever. The final Title IX regulations incorporating these provisions were issued on May 6, 2020, with an effective date of August 14, 2020.
The NWLC also filed Victim Rights Law Center v. DeVos in early June 2020 in the District of Massachusetts with co-counsel Morrison and Foerster and Diane Rosenfeld of Harvard Law School which challenges the Department’s final Title IX regulations on sexual harassment, arguing that the regulations and the process by which they were issued violate the Administrative Procedures Act and constitute sex discrimination in violation of the Constitution.
In November 2019, the district court granted summary judgment to the Department of Education in Equal Right Advocates, based on its conclusion that the interim guidance did not constitute final agency action. NWLC appealed this decision to the Ninth Circuit and the parties agreed to a consent motion to stay the appellate proceedings. The motion reasoned that if the Title IX regulations survive legal challenge, this will likely moot the appeal in Equal Rights Advocates v. DeVos, while if the regulations are vacated in whole or in part, it may be appropriate to proceed with the appeal. This consent motion was granted by the Ninth Circuit.
In Victim Rights Law Center, the NWLC filed an amended complaint in July 2020 adding seven student survivors of sexual harassment as plaintiffs, who face educational, psychological, and emotional harm if the new regulations go into effect. NWLC also moved for a preliminary injunction staying the effective date of the regulations, which was argued on September 2, 2020. Rather than ruling on the motion for preliminary injunction, the district court judge consolidated the preliminary injunction motion with a bench trial on the merits, which went forward on November 12, 2020. During the bench trial, the judge expressed concerns that the Department of Education rule would potentially prohibit schools from considering a wide range of relevant evidence in determining responsibility for sexual harassment. Since November 2020, the NWLC has been awaiting a decision on the merits from the district court.
On March 8, 2021, President Biden issued an Executive Order instructing the Department of Education to initiate a review of the Title IX rule for consistency with law and administration policy and to consider suspension, revision, or rescission of its prior rule. In June 2021, the Department of Education held a week of virtual hearings to hear feedback from stakeholders regarding the rule. The most recent Unified Regulatory Agenda does not anticipate that a new proposed rule will be put forward until May 2022 at the earliest.
2022 Update
On July 28, 2021, the court in Victim Rights Law Center partially vacated the DeVos Title IX rule, in a significant win. The court held unlawful the portion of the rule which required postsecondary schools to exclude all oral or written statements made by any party or witness who did not submit to cross-examination at a live hearing. This provision meant that college and graduate school survivors were required to submit to cross-examination by their harasser or abuser’s advisor in order for the statements in their formal complaint or Title IX interview to be considered as evidence. The exclusionary rule also meant that Title IX respondents could exclude a confession or apology from the evidence by simply refusing to be cross-examined. Similarly, schools could not consider statements in a text message, email, rape kit, police report, etc. if the person who wrote the statements was not available or was too afraid to appear for cross-examination. In vacating the exclusionary rule and remanding it to the Department of Education, the judge remarked that this exclusionary rule rendered Title IX hearings “a remarkably hollow gesture.” After all, while complainants would have to submit to cross-examination at a live hearing for their evidence to be admitted, a respondent could simply refuse to attend the hearing and persuade other witnesses not to attend and then “rest easy knowing that the school could not subpoena other witnesses to appear.” He noted that “[t]his is not some extreme outlier or fanciful scenario.” As a result, he concluded “the Department failed, even implicitly, to consider the consequences” of the exclusionary rule. The Department of Education is no longer enforcing this provision. Unfortunately, the court held that the remainder of the rule survived our APA challenge. We appealed this decision to the First Circuit, but have agreed to stay the appeal pending the Department of Education’s issuance of a NPRM revising the Title IX rule; the NPRM is expected to be released this month.
Click here to see the original grant, including the six-month and year-end reports.