News & Insight


U.S. District Court Judges for the District of Columbia and the Southern District of New York have denied motions for a preliminary injunction to enjoin implementation of the Department of Education’s (“ED”) new Title IX rule. The D.C. case was brought by attorneys general in 17 states and the District of Columbia, while the N.Y. case was brought by the state of New York and New York Board of Education (collectively “Plaintiffs”).

Both cases found that Plaintiffs were not likely to success on the merits of their claims. Plaintiffs alleged that the new Title IX rule is arbitrary and capricious under the Administrative Procedure Act and that ED exceeded its statutory authority by mandating the dismissal of certain complaints, both by limiting the jurisdiction of Title IX to sexual harassment that occurs “in an education program or activity” and by adjusting the definition of sexual harassment to “severe, pervasive, and objectively offensive” conduct. Both courts disagreed, noting that ED’s jurisdictional limitation on Title IX to conduct occurring “in an education program or activity” did not exceed statutory authority because the language was rooted in the statutory text of Title IX itself. Additionally, the D.C. court found that ED’s divergence from the definition of sexual harassment under Title VII (“severe, persistent, or pervasive”) was not arbitrary and capricious because it was reasonably explained by ED’s considerations of the First Amendment, while the N.Y. court noted that ED’s adoption of the Gebser/Davis framework based on “Supreme Court authority could hardly be characterized as ‘arbitrary and capricious.’” Both courts further found Plaintiffs unlikely to succeed on the merits of their claims related to ED’s failure to justify departure from previous policy, failure to consider important aspects of the issue, and failure to account for the unique circumstances of the K-12 environment, among other claims.

Even if Plaintiffs had a likelihood of success on the merits of their claims, both courts determined that Plaintiffs could not show irreparable harm absent an injunction since Plaintiffs likely already incurred many of the costs associated with implementing the new Title IX rule in time for the August 14, 2020 implementation date. Moreover, both courts determined that the balance of the equities and public interest did not favor an injunction. The N.Y. court reasoned that the new Title IX rule will not necessarily harm students since it conferred protection on individuals who are entitled to Title IX’s protections (i.e. respondent students), while both courts agreed that ED’s interest in resolving confusion from prior guidance and in upholding Due Process and First Amendment rights were in the public interest.  On an ending note, the D.C. court emphasized that Plaintiffs were free to pursue sexual misconduct outside the new Title IX rule’s definition of sexual harassment through state law or other college and university codes of conduct.  

Should you have any questions or concerns about the implications of these rulings, please feel free to contact HMBR’s Higher Education Group at 312-946-1800.

  Aug 14, 2020  |  By    |   On Client Alerts