Pennsylvania v. DeVos

Decision Date12 August 2020
Docket NumberCivil Action No. 1:20-cv-01468 (CJN)
Parties Commonwealth of PENNSYLVANIA, et al., Plaintiffs, v. Elisabeth DEVOS, Secretary of the U.S. Department of Education, et al., Defendants.
CourtU.S. District Court — District of Columbia

Jacob Boyer, Michael John Fischer, Ryan B. Smith, Aimee D. Thomson, Pennsylvania Office of Attorney General, Philadelphia, PA, Marie Soueid, Office of the New Jersey Attorney General, Trenton, NJ, for Plaintiff Commonwealth of Pennsylvania.

Aimee D. Thomson, Office of the Attorney General/PA Impact Litigation Section, Philadelphia, PA, Marie Soueid, Estelle Bronstein, Office of the New Jersey Attorney General, Trenton, NJ, Emily Kane Wanger, Office of the Attorney General, Newark, NJ, for Plaintiff State of New Jersey.

Aimee D. Thomson, Office of the Attorney General/PA Impact Litigation Section, Philadelphia, PA, Laura Lynne Faer, Office of the Attorney General, Oakland, CA, Christina Riehl, Office of the Attorney General, San Diego, CA, Christine Hsiao-Ting Chuang, Office of the Attorney General/CA Civil Rights Enforcement Section, San Francisco, CA, Marie Soueid, Office of the New Jersey Attorney General, Trenton, NJ, Marisol Leon, Panchalam Seshan Srividya, Californina Department of Justice, Shubhra Shivpuri, California Attorney General's Office, Los Angeles, CA, for Plaintiff State of California.

Aimee D. Thomson, Office of the Attorney General/PA Impact Litigation Section, Philadelphia, PA, Skippere S. Spear, J. Patrick Hizon Warwick-Diaz, Jacquelynn Nichole Rich Fredericks, Colorado Department of Law, Daniel Rheiner, Office of the Attorney General, Denver, CO, Marie Soueid, Office of the New Jersey Attorney General, Trenton, NJ, for Plaintiff State of Colorado.

Aimee D. Thomson, Office of the Attorney General/PA Impact Litigation Section, Philadelphia, PA, Christian Douglas Wright, Vanessa L. Kassab, Delaware Department of Justice, Wilmington, DE, Marie Soueid, Office of the New Jersey Attorney General, Trenton, NJ, for Plaintiff State of Delaware.

Aimee D. Thomson, Office of the Attorney General/PA Impact Litigation Section, Philadelphia, PA, Marie Soueid, Office of the New Jersey Attorney General, Trenton, NJ, for Plaintiffs District of Columbia, State of Michigan, State of New Mexico, State of North Carolina, State of Oregon, State of Rhode Island, State of Vermont.

Aimee D. Thomson, Office of the Attorney General/PA Impact Litigation Section, Philadelphia, PA, Alison V. Hill, Illinois Attorney General's Office, Chicago, IL, Marie Soueid, Office of the New Jersey Attorney General, Trenton, NJ, for Plaintiff State of Illinois.

Aimee D. Thomson, Office of the Attorney General/PA Impact Litigation Section, Philadelphia, PA, Angela Renee Brooks, Office of Attorney General, Boston, MA, Marie Soueid, Office of the New Jersey Attorney General, Trenton, NJ, for Plaintiff Commonwealth of Massachusetts.

Aimee D. Thomson, Office of the Attorney General/PA Impact Litigation Section, Philadelphia, PA, Kathryn Woodruff, Kevin Finnerty, Minnesota Attorney General's Office, St. Paul, MN, Marie Soueid, Office of the New Jersey Attorney General, Trenton, NJ, for Plaintiff State of Minnesota.

Aimee D. Thomson, Office of the Attorney General/PA Impact Litigation Section, Philadelphia, PA, Jessica Merry Samuels, Office of the Attorney General, Richmond, VA, Marie Soueid, Office of the New Jersey Attorney General, Trenton, NJ, for Plaintiff Commonwealth of Virginia.

Aimee D. Thomson, Office of the Attorney General/PA Impact Litigation Section, Philadelphia, PA, Kristin Beneski, Office of Attorney General, Seattle, WA, Marie Soueid, Office of the New Jersey Attorney General, Trenton, NJ, for Plaintiff State of Washington.

Aimee D. Thomson, Office of the Attorney General/PA Impact Litigation Section, Philadelphia, PA, Jeffery A. Simcox, Wisconsin Department of Justice, Madison, WI, for Plaintiff State of Wisconsin.

MEMORANDUM OPINION

CARL J. NICHOLS, United States District Judge Seventeen states and the District of Columbia filed this suit challenging the U.S. Department of Education's final rule addressing Title IX obligations, which was published in the Federal Register on May 19, 2020, and is scheduled to take effect on August 14, 2020. See 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 "Final Rule" or "Rule"). Plaintiffs later moved for a preliminary injunction enjoining implementation of the Rule or, in the alternative, for a stay of its effective date pending judicial review. Although Plaintiffs have raised serious arguments about certain aspects of the Rule, they have not established a likelihood of success on their claims, nor have they established that they are likely to suffer substantial irreparable harm pending further litigation. For those reasons, discussed below, the Court denies Plaintiffs’ Motion.

I. Background1

In 1972, Congress enacted Title IX of the Education Amendments, 20 U.S.C. §§ 1681 – 88, which prohibits discrimination on the basis of sex in education programs and activities that receive federal financial assistance. 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(a). The statute also "authorize[s] and direct[s]" each federal department or agency that extends federal financial assistance to any education program or activity, including the Department of Education, "to effectuate the provisions of [ section 1681 ] by issuing rules, regulations, or orders of general applicability." Id. § 1682.

In 1975, the Department of Health, Education, and Welfare (predecessor of the Department of Education) promulgated regulations addressing Title IX's mandate "in hiring, admissions, athletics, and other aspects of recipients’ education programs or activities." 85 Fed. Reg. at 30,028 (citing 40 Fed. Reg. 24,128 (June 4, 1975) (codified at 45 C.F.R. pt. 86 (2020))). Those regulations further required recipients (i.e., schools and other entities receiving federal funds in connection with education programs or activities) to "designate an employee to coordinate" compliance efforts and to "adopt and publish grievance procedures providing for prompt and equitable resolution of [Title IX] complaints." Id. (citations omitted).

In 1997, the Department of Education's Office of Civil Rights issued a guidance document addressing Title IX's application to sexual harassment and recipients’ corresponding obligations. See generally Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12,034 (Mar. 13, 1997), https://www2.ed.gov/about/offices/list/ocr/docs/sexhar01.html#skipnav2. The 1997 guidance characterized sexual harassment as "quid pro quo" or "hostile environment" harassment. 62 Fed. Reg. at 12,038. The guidance informed schools that "liability for sexual harassment by its employees is determined by application of agency principles," id., and that "school[s] will always be liable for even one instance of quid pro quo harassment by a school employee in a position of authority ... whether or not it knew, should have known, or approved of the harassment at issue," id. at 12,039. And the 1997 guidance defined "hostile environment" harassment as:

Sexually harassing conduct (which can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature) by an employee, by another student, or by a third party that is sufficiently severe, persistent, or pervasive to limit a student's ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment.

Id. at 12,038 (emphasis added).

After the 1997 guidance was issued, the Supreme Court decided two cases involving schools’ liability in private Title IX actions.2 In 1998, the Supreme Court held that in a private action against a school district for the sexual harassment of the student by one of the district's teachers, damages may be recovered only when a district official with the authority to institute corrective measures on the district's behalf has actual notice of, and is deliberately indifferent to, the teacher's misconduct. Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 277, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). A year later, the Supreme Court held that schools can be liable for peer-to-peer harassment where such harassment is so "severe, pervasive, and objectively offensive" that it "undermines and detracts from the victims’ educational experience, [such] that the victim-students are effectively denied equal access to an institution's resources and opportunities." Davis v. Monroe Cty. Bd. of Educ. , 526 U.S. 629, 650, 651, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (emphasis added).

The Department issued additional guidance in 2001. See Revised Guidance on Sexual Harassment: Harassment of Students by School Employees, Other Students, or Third Parties (Jan. 19, 2001), https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf. While the Department reiterated its previous compliance standards and stated that its regulatory definitions and standards were distinct from those that might apply in damages actions, the Department also explained that the Davis definition of hostile environment sexual harassment (conduct that is "severe, pervasive, and objectively offensive") was consistent with the definition included in its 1997 guidance (conduct that is "sufficiently severe, persistent, or pervasive"). See 2001 Guidance at v. As the Department put it, both were "contextual descriptions intended to capture ... that under Title IX, the conduct must be sufficiently...

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