Executive Summary: Title IX of the Education Amendments of 1972 (Title IX) and its corresponding regulations prohibit sex discrimination in education programs or activities conducted by educational institutions that receive federal financial assistance. It is well-settled that sexual harassment which creates a hostile environment constitutes sex discrimination prohibited by Title IX. On September 22, 2017, the U.S. Department of Education, Office for Civil Rights (OCR), which enforces Title IX, issued a “Dear Colleague” letter and new Q&A on Campus Misconduct. The Dear Colleague letter explains that OCR’s prior letter dated April 4, 2011 and Q&A guidance dated April 29, 2014 (issued during the Obama administration) have both been withdrawn. OCR cited criticism as to the fairness of the prior guidance as part of the reason for issuing the new guidance.

OCR advised that revisions were necessary because prior guidance was “confusing and counterproductive” and “led to the deprivation of rights for many students – both accused students denied fair process and victims denied an adequate resolution of their complaints.” OCR intends to “develop an approach to student sexual misconduct that responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits” through formal notice and comment rule making.

The new guidance emphasized that schools should provide for a “prompt and equitable” resolution of complaints of sex discrimination and sexual misconduct. Schools shall conduct a fair, impartial and equitable investigation in a timely manner, and investigators of sexual misconduct may use a preponderance of the evidence standard or a clear and convincing evidence standard; however, the standard should be equivalent to that used in other student misconduct matters. Any discipline issued should be proportionate to the violation, and consideration should be made with respect to the impact of removing a student from his or her education. A complete summary of the new guidance can be found in our Legal Alert dated October 10, 2017.

However, the revised guidance has not gone unchallenged. On October 19, 2017, a lawsuit was filed in the United States District Court for the District of Massachusetts against the U.S. Department of Education and Secretary of Education, Betsy DeVos, seeking declaratory and injunctive relief.

The Legal Challenge

In their complaint for declaratory and injunctive relief, Equal Means Equal, a non-profit advocacy organization for gender equality, and a class of individual plaintiffs involved in pending OCR investigations or litigation under Title IX, challenge OCR’s recent guidance on campus sexual misconduct. The plaintiffs claim that the guidance, which was not issued through formal notice and comment rulemaking, violates the Administrative Procedures Act because: (1) “[it is] arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law; (2) [it is] contrary to constitutional right, power, privilege, or immunity; (3) [it was] issued in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) [it was] issued without observance of procedure required by law; and (5) [it is] unwarranted by the facts.” The plaintiffs further challenge the constitutionality of the new guidance under the First Amendment to the U.S. Constitution by claiming that it provides a chilling effect by “inhibit[ing] victims of sex-based civil rights harms from reporting and seeking redress.” Finally, the plaintiffs claim that the new guidance constitutes sex discrimination in violation of Title IX, the Massachusetts Equal Rights Act, and the equal protection clause of the Massachusetts Constitution.

Specifically, the plaintiffs assert that the new guidance itself violates Title IX because it “permit[s] schools to treat civil rights harms differently on the basis of sex.” In support of this allegation, the plaintiffs cite to the provision in the new guidance that permits a more onerous burden of proof than preponderance of the evidence if such standard is used in other misconduct matters. The plaintiffs also believe that OCR is promoting the use of a criminal standard of “sexual assault” rather than a civil standard of “unwelcome behavior” traditionally used in the civil rights context, thus only covering “severe forms of sex-based civil rights harms.”

The lawsuit seeks to set aside the new guidance in its entirety and preclude the Department of Education from mandating that schools follow the new guidance. Plaintiffs are also seeking a temporary restraining order to enjoin the application of the new guidance while the lawsuit is litigated.

Bottom Line: Sexual misconduct remains an important issue on campus. Schools should continue to diligently conduct fair, impartial and equitable investigations of sexual misconduct complaints consistent with the revised guidance issued in September 2017 until notice of an injunction, if one is issued. Institutions should ensure that their policies are gender neutral and provide equal opportunities to both complainants and respondents in the investigatory and disciplinary processes.

Furthermore, OCR indicated that the new guidance was a precursor to its intent to engage in formal notice and comment rule making regarding investigations of campus sexual misconduct. Accordingly, even if an injunction results from litigation challenging the new guidance, OCR may issue proposed rules through notice and comment rule making. If it does so, schools may consider submitting comments in response to such proposed rules during the comment period.