New York v. U.S. Dep't of Educ.

• Decision Date: 09 August 2020
• Docket Number: 20-CV-4260 (JGK)
• Citation: 477 F.Supp.3d 279
• Parties: State of NEW YORK, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

477 F.Supp.3d 279

State of NEW YORK, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF EDUCATION, et al., Defendants.

20-CV-4260 (JGK)

United States District Court, S.D. New York.

Signed August 9, 2020

Lindsay McKenzie, Morenike Fajana, Joseph Wardenski, Matthew Colangelo, New York State Office of the Attorney General, New York, NY, for Plaintiff State of New York.

Sabita Lakshmi Krishnan, New York City Law Department, New York, NY, for Plaintiff The Board of Education for the City School District of the City of New York.

Benjamin Thomas Takemoto, Lindsay Pickell, Jennifer B. Dickey, U.S. Department of Justice, Washington, DC, Andrew Todd Miltenberg, Nesenoff & Miltenberg, L.L.P., New York, NY, for Defendants.

OPINION AND ORDE4457

JOHN G. KOELTL, District Judge:

This case is an action by the State of New York and the Board of Education for the City School District of the City of New York ("NYC DOE"), against the defendants, the United States Department of Education ("DOE") and Elisabeth DeVos, as the Secretary of the DOE. On May 19, 2020, the DOE published a final rule in the Federal Register, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30,026 (May 19, 2020) (to be codified at 34 C.F.R. pt. 106), (the "Rule"), which is scheduled to take effect on August 14, 2020. The Rule generally describes "sexual harassment" and establishes grievance procedures that educational institutions receiving federal funding ("recipients") must follow to decide complaints about sexual harassment. The Rule was subject to public notice and comment and the DOE received nearly 125,000 comments. The plaintiffs disagree with how the DOE defined "sexual harassment" and with the grievance procedures that the DOE included in the Rule. The plaintiffs allege that the Rule violates various provisions of the Administrative Procedure Act ("APA") and contend in particular that the DOE actions in adopting the Rule were "arbitrary and capricious."

The plaintiffs now move pursuant to Federal Rule of Civil Procedure 65 for a preliminary injunction enjoining the implementation of the Rule. In the alternative, the plaintiffs move under the APA, 5 U.S.C. § 705, to stay the effective date of the Rule until the plaintiffs’ claims can be adjudicated on the merits. Although the plaintiffs would have drawn lines differently from those drawn in the Rule, they have failed to show that they will likely prevail on their argument that the DOE acted "arbitrarily and capriciously" or otherwise in violation of law when it promulgated the Rule. Therefore, as explained in detail below, the motion for a preliminary injunction, or for a stay, is denied.

I. Background

A. Legal Framework

Title IX of the Education Amendments of 1972 ("Title IX") was enacted to "avoid the use of federal resources to support discriminatory practices" and "to provide individual citizens effective protection against those practices." Cannon v. Univ. of Chicago, 441 U.S. 677, 704, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). The statute provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681.¹ Title IX defines "program or activity" in relevant part as "all of the operations" of a school² or covered entity, "any part of which is extended Federal financial assistance." 20 U.S.C. § 1687.

The statute's dual purposes are enforced by federal administrative agencies that disburse funding ("administrative enforcement scheme") and by the courts through private litigation ("judicial enforcement scheme"). Congress expressly authorized an administrative enforcement scheme for Title IX. The DOE is authorized to promulgate rules, regulations, and orders, and may use "any ... means authorized by law," including the termination of funding, to effectuate the statute's restrictions. Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 638-39, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (citation omitted). Under this administrative enforcement scheme, no action shall be taken until the DOE "has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means." 20 U.S.C. § 1682. In the event an agency takes action to terminate financial assistance, the statute also requires the DOE to file a full written report with the relevant committees of the House and Senate and states that no action will become effective until thirty days after the filing of such report. Id. While the statute does not expressly speak to a remedy in private litigation, the Supreme Court has held that Title IX may also be enforced by a judicially implied private right of action, Cannon, 441 U.S. at 709, 99 S.Ct. 1946, and that in cases alleging intentional discrimination, money damages are available as a remedy, Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992).

Subsequently, the Supreme Court examined the conditions under which schools would be liable for monetary damages under Title IX for sexual harassment of students by teachers or peers in cases brought by private plaintiffs. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) (teacher-on-student harassment); Davis, 526 U.S. 629, 119 S.Ct. 1661 (student-on-student harassment). Among other things, the Supreme Court's decisions established that a school could be subject to monetary liability only when a school exhibited "deliberate indifference" that subjected a student to harassment; that harassment must take place in a context "subject to the school district's control" and that liability exists for harassment "that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." Davis, 526 U.S. at 644-45, 650, 119 S.Ct. 1661. Further, a school is liable in damages only when an appropriate person, who is, "at a minimum, an official of the recipient entity with authority to take corrective action to end the discrimination," "has actual knowledge of discrimination and fails to adequately respond." Gebser, 524 U.S. at 290, 118 S.Ct. 1989.

The DOE refers to the Supreme Court's definitions of actionable sexual harassment, actual knowledge, and deliberate indifference as the " Gebser/ Davis framework." 85 Fed. Reg. at 30,032 -33. The Gebser/ Davis framework for private claims for monetary damages was guided by analogy to the administrative enforcement mechanism of Title IX because the Supreme Court recognized that in fashioning a judicially-created private cause of action, the Court should be guided by the administrative mechanism that Congress explicitly provided in Title IX. Davis, 526 U.S. at 641, 119 S.Ct. 1661 ; Gebser, 524 U.S. at 289, 118 S.Ct. 1989 ("It would be unsound, we think, for a statute's express system of enforcement to require notice to the recipient and an opportunity to come into voluntary compliance while a judicially implied system of enforcement permits substantial liability without regard to the recipient's knowledge or its corrective actions upon receiving notice.").

B. DOE Guidance

The Rule is the DOE's first regulation identifying sexual harassment as unlawful sex discrimination under Title IX. However, since 1997, the DOE has issued guidance discussing how schools should resolve allegations concerning sexual harassment and sexual violence. In 1997, the DOE published Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12,034 (Mar. 13, 1997) ("1997 Guidance"). The 1997 Guidance stated that "[i]n order to give rise to a complaint under Title IX, sexual harassment must be sufficiently severe, persistent, or pervasive that it adversely affects a student's education or creates a hostile or abusive educational environment." 62 Fed. Reg. at 12,034.

In 2001, the DOE published a "Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties." Wardenski Decl., Ex. 4 ("2001 Guidance"). In the 2001 Guidance, the DOE declared that the Gebser and Davis decisions created a standard limited to monetary liability that was not applicable to administrative enforcement. Id. at ii. However, the 2001 Guidance stated that although the Davis Court's definition of harassment differed somewhat from the definition used by the DOE in the 1997 Guidance, the definitions were "consistent" because both agreed that the "conduct must be sufficiently serious that it adversely affects a student's ability to participate in or benefit from the school's program." Id. at vi. The 2001 Guidance also stated that a school could be in violation of Title IX if certain responsible employees "knew, or in the exercise of reasonable care should have known" about the harassment. Id. at 13.³ Responsible employees included "any employee who has the authority to take action to redress the harassment, who has the duty to report to appropriate school officials sexual harassment or any other misconduct by students or employees, or an individual who a student could reasonably believe has this authority or responsibility." Id.

C. The Rule

In late 2018, the DOE published a notice of proposed rulemaking, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 83 Fed. Reg. 61,462 (Proposed Nov. 29, 2018) (to be codified at 34 C.F.R. Pt. 106) ("Proposed Rule"). Compl. ¶ 6. During the notice and comment period, the DOE received nearly 125,000 comments on the Proposed Rule. Id. On May 19, 2020, the DOE published the Rule in the Federal Register; the Rule has an effective date of August 14, 2020. 85...