Federal court clears way for new Title IX K-12 rule, takes effect Friday

Dive Brief:

The U.S. District Court for the District of Columbia ruled Wednesday in favor of new Title IX rules requiring districts to significantly upend sexual harassment and assault reporting processes. The rules are set to take effect Friday.
The decision denied the request of 18 attorneys general from 17 states and the District of Columbia for a preliminary injunction. It acknowledged while the concerns may be sound, the court's role "is not to substitute its judgment for that of the [U.S. Department of Education]" and is not to ask "whether a regulatory decision is the best one possible or even whether it is better than the alternatives."
The attorneys general challenged the new regulations in June, hoping to postpone implementation on the grounds that:
- K-12 schools will be required to "completely overhaul their systems" for sexual harassment complaints while COVID-19 has strained their resources.
- Putting in place new policies and procedures in three months is impractical and not enough time to gather stakeholder input and garner buy-in.
- The rules fail to protect students from incidents of isolated sexual harassment like inappropriate touching.
- The rules leave a gray area for K-12 schools, like how to protect the privacy of those involved in the complaints and not being able to use "sound forms of discipline" like detention or suspension before a formal appeals process.

Dive Insight:

The new regulations, unveiled by U.S. Secretary of Education Betsy DeVos in May, go into effect Aug. 14, while districts are reopening school buildings in many places after months of COVID-19 closures. A similar case filed by the New York City Department of Education challenging the Title IX regulations was also denied earlier this week.

Starting Friday, schools will be required to respond to sexual harassment allegations when any school employee has been notified by a student, as opposed to DeVos' earlier proposal that limited those employees to teachers. Institutions can be held liable if they fail to respond to notices by bus drivers, coaches, cafeteria staff and others.

The attorneys general also argued the new rules require "hiring and training staff, engaging in required consultation with stakeholders, overhauling policies, revising grievance processes, and communicating the complex changes to students, families, and employees — all in the midst of [a] global pandemic that has depleted their resources and disrupted their ordinary operations.”

And while districts may have to reallocate resources to implement the rules, the court concluded those were not significant enough to result in an injunction, despite the concerns of the attorneys general that doing so would take away from the resources needed to navigate the pandemic.

In its decision, the court said it "recognizes the obvious seriousness of the COVID-19 pandemic" and acknowledged "the substantial additional work burdening schools" as they approach a new school year. "In fact, for these and other reasons, a later effective date might have been a preferable policy decision," the opinion said.

Still, Judge Carl J. Nichols wrote in his opinion the Department of Education took the pandemic and other concerns into consideration during its rule-making process, making it unlikely its implementation date was "arbitrary and capricious," as the attorneys general claimed in their lawsuit.

The decision also said schools have "long been on notice" about the final rule, referencing the proposed rules that were left open for comment in 2017. While Nichols said "schools could not be expected to actually change their policies in important ways based merely on a proposed rule," schools were given "almost two years to analyze and understand its requirements" and that the department's expectation is not "unreasonable."

And while the new rules set a higher bar for incidents to be investigated as sexual harassment under Title IX, the Ed Department does not prevent schools from investigating and punishing conduct not technically considered sexual harassment under the new definition — so long as schools do not label those incidents as Title IX cases.

The department called the decision a "victory" in a press release sent Wednesday afternoon, saying it can "now look forward to [the rules] taking effect this Friday."