On June 4, 2020, the Commonwealth of Pennsylvania, along with 17 other states, filed suit against the United States and Betsy DeVos, in her official capacity as Secretary of Education, to prevent implementation of the Title IX Rule (“Final Rule”) the Department of Education issued on May 6, 2020.¹ Among other changes, the Final Rule made sweeping changes for handling sexual harassment claims at institutions of higher education. On August 12, 2020, the court denied the plaintiffs’ request to prevent the rule from taking effect pending the outcome of litigation, meaning the August 14, 2020 effective date still stands.

Lawsuit Against Rule

On June 23, 2020, the state plaintiffs moved to enjoin the Final Rule pending judicial review, on grounds that the August 14, 2020 effective date is arbitrary and capricious, and that the Final Rule exceeds agency authority, impermissibly narrows Title IX, and will irreparably harm schools and students by making it harder to prevent, address, and remedy sexual harassment. The Department responded that the effective date is not arbitrary or capricious because the Department solicited public comments over a year ago, and announced the promulgation of a new rule over three years ago. The Department further responded that the limits imposed under the Final Rule both on the definition of sexual harassment and the geographical limits of an “educational program or activity” reasonably derive from case law and the statutory source. In addition, the Department responded that the agency’s cost-benefit analysis was conducted pursuant to executive order and is not subject to judicial review.

A month later, the court held a hearing on the plaintiffs’ request for a preliminary injunction to stop enforcement of the regulations. Argument focused on the Department’s authority to condition Title IX funding on compliance with mandates in the Final Rule, such as the mandatory dismissal of complaints that do not fit the Final Rule’s definition of sexual harassment, or the inability of educational institutions to enlarge the Final Rule’s definition of sexual harassment in their own policies.² Specifically, the court questioned both parties on the Department’s authority to prohibit schools from doing more than what is required under the Rule.

The court requested additional briefing addressing whether the Department has the authority to make plaintiffs’ failure to comply with the Final Rule a violation of Title IX. On August 12, 2020, the court denied the preliminary injunction in a 31-page memorandum opinion. The court found that although the plaintiffs raised serious arguments about certain aspects of the Final Rule, they did not establish a likelihood of success on their claims, nor did they established that they were likely to suffer substantial irreparable harm pending further litigation.

What this Means for Higher Education Employers

The Final Rule will take effect on August 14, 2020 as scheduled. Primary, secondary, and post-secondary schools that receive funding from the Department of Education will need to move forward with changes to their applicable policies, update their grievance procedures, and conduct trainings to comply with the new regulations.