Victim Rights Law Ctr. v. Cardona

• Decision Date: 28 July 2021
• Docket Number: CIVIL ACTION NO. 20-11104-WGY
• Citation: 552 F.Supp.3d 104
• Parties: VICTIM RIGHTS LAW CENTER, Equal Rights Advocates, Legal Voice, Chicago Alliance Against Sexual Exploitation, Jane Doe, an individual by and through her mother and next friend Melissa White, Nancy Doe, Mary Doe, Plaintiffs, v. Miguel CARDONA, in his offical capacity as Secretary of Education, Suzanne Goldberg, in her offical capacity as Acting Assistant Secretary for Civil Rights, United States Department of Education, Defendants.
• Court: U.S. District Court — District of Massachusetts

552 F.Supp.3d 104

VICTIM RIGHTS LAW CENTER, Equal Rights Advocates, Legal Voice, Chicago Alliance Against Sexual Exploitation, Jane Doe, an individual by and through her mother and next friend Melissa White, Nancy Doe, Mary Doe, Plaintiffs,

v.Miguel CARDONA,¹ in his offical capacity as Secretary of Education, Suzanne Goldberg,² in her offical capacity as Acting Assistant Secretary for Civil Rights, United States Department of Education, Defendants.

CIVIL ACTION NO. 20-11104-WGY

United States District Court, D. Massachusetts.

Filed July 28, 2021

Caitlin A. Crujido, Pro Hac Vice, David A. Newman, Pro Hac Vice, Evan M. Harris, Pro Hac Vice, Julie G. O'Neill, Natalie Fleming-Nolen, Pro Hac Vice, Robin A. Smith, Pro Hac Vice, Vanshika Vij, Pro Hac Vice, Morrison & Foerster LLP, Elizabeth Tang, Pro Hac Vice, Emily J. Martin, Pro Hac Vice, Neena Chaudhry, Pro Hac Vice, Shiwali G. Patel, Pro Hac Vice, Sunu Chandy, Pro Hac Vice, National Women's Law Center, Washington, DC, for Plaintiffs Victim Rights Law Center, Equal Rights Advocates, Legal Voice, Chicago Alliance Against Sexual Exploitation, Jane Doe, Anne Doe, Sobia Doe, Jill Doe, Nancy Doe, Lisa Doe.

Caitlin A. Crujido, Pro Hac Vice, David A. Newman, Pro Hac Vice, Evan M. Harris, Pro Hac Vice, Natalie Fleming-Nolen, Pro Hac Vice, Robin A. Smith, Pro Hac Vice, Vanshika Vij, Pro Hac Vice, Julie G. O'Neill, Morrison & Foerster LLP, Emily J. Martin, Pro Hac Vice, Neena Chaudhry, Pro Hac Vice, Shiwali G. Patel, Pro Hac Vice, Sunu Chandy, Pro Hac Vice, National Women's Law Center, Washington, DC, for Plaintiff Susan Doe.

Rebecca M. Kopplin, United States Department of Justice, Jennifer B. Dickey, U.S. Department of Justice Office of the Associate Attorney General, Steven A. Myers, United States Department of Justice, Civil Division, Washington, DC, for Defendants Elizabeth D. DeVos, Kenneth L. Marcus.

Jennifer B. Dickey, U.S. Department of Justice Office of the Associate Attorney General, Jennifer L. Mascott, Rebecca M. Kopplin, United States Department of Justice, Steven A. Myers, United States Department of Justice, Civil Division, Washington, DC, for Defendant U.S. Department of Education.

FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT

YOUNG, D.J.³

I. INTRODUCTION

On November 29, 2018, the United States Department of Education (the "Department") proposed to amend regulations implementing Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 ("Title IX"). See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance ("Proposed Rule"), 83 Fed. Reg. 61,462 (proposed Nov. 29, 2018). After receiving comments on the Proposed Rule, the Department published the Final Rule on May 19, 2020. See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance ("Final Rule"), 85 Fed. Reg. 30,026 (May 19, 2020) (codified at 34 C.F.R pt. 106). The Final Rule sets new standards for actionable sexual harassment under Title IX, new procedures for Title IX investigations, and procedural safeguards for those accused of sexual harassment. See generally id.

Four organizations that advocate on behalf of victims of sexual violence, Victim Rights Law Center ("Victim Rights"), Equal Rights Advocates, Legal Voice, and Chicago Alliance Against Sexual Exploitation ("Chicago Alliance") (collectively, the "Organizational Plaintiffs"), and three individual plaintiffs, Jane Doe, Nancy Doe, and Mary Doe (collectively, the "Individual Plaintiffs"), seek to challenge the Final Rule as violative of the Administrative Procedure Act (the "APA") and the Equal Protection Clause of the Fifth Amendment. Second Am. Compl. ¶¶ 267-293, ECF No. 138-1.

The Organizational and Individual Plaintiffs (collectively, the "Advocates") challenge the Final Rule and argue that it violates section 706(2)(A) of the APA because thirteen of its provisions depart from established practice and procedure regulating educational institutions "not in accordance with law" ("count I"), and that the same thirteen provisions are the product of arbitrary and capricious decision making ("count II"). Id. ¶¶ 267-276; see Pls.’ Pretrial Br. 6-7, ECF No. 145. The Advocates also argue that six provisions violate section 706(2)(C) of the APA because they were promulgated in excess of the Department's statutory authority ("count III"), that five provisions are not logical outgrowths of the Proposed Rule in violation of section 706(2)(D) of the APA ("count IV"), and that thirteen provisions violate the Equal Protection Clause of the Fifth Amendment by discriminating on the basis of sex ("count V"). Second Am. Compl. ¶¶ 277-293. The Advocates sought a preliminary injunction to halt the implementation of the Final Rule just as soon as it was promulgated. See Mot. Prelim. Inj., ECF No. 31.

The defendants, Miguel Cardona in his official capacity as Acting Secretary of Education, the Department, and Suzanne Goldberg in her official capacity as Acting Assistant Secretary for Civil Rights (collectively, the "Government") challenge the Advocates’ Article III standing and maintain that the Department's promulgation was constitutional, within its statutory authority, and otherwise in compliance with the APA. Defs.’ Pretrial Br. 1-8, 10-15, ECF No. 144.

As is its wont, this Court collapsed hearing on the preliminary injunction with trial on the merits pursuant to Federal Rule of Civil Procedure 65(a). But see Nwaubani v. Grossman, 806 F.3d 677, 679 (1st Cir. 2015) (Thompson, J.) (cautioning against overuse of this procedural device). A full jury-waived trial was held on November 18, 2020. Elec. Clerk's Notes (Nov. 18, 2020), ECF No. 146.

The Court here enters its findings of fact and rulings of law as required by Federal Rule of Civil Procedure 52.

II. TITLE IX GENERALLY

Congress enacted Title IX for two reasons: "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 Chi., 441 U.S. 677, 704, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). To those ends, the statute mandates 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 term "program or activity" includes "all of the operations of" all schools, from K-12 to colleges and universities (apart from certain religious institutions), that receive any kind of federal funds ("recipients" or "schools"). Id. § 1687.

Title IX may be enforced judicially, as when a plaintiff sues a school for damages, see Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) ; however, the Supreme Court has sharply limited liability in such cases. A plaintiff may recover "only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit," and he or she must prove the school's "deliberate indifference to known acts of harassment in its programs or activities." Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 633, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). This standard is met only if "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails adequately to respond." Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). The Final Rule refers to these three standards -- the strict definition of sexual harassment and the requirements of actual knowledge and deliberate indifference -- as the " Gebser / Davis framework." 85 Fed. Reg. at 30,032.

Title IX may also be enforced administratively by the Department. See Gebser, 524 U.S. at 292, 118 S.Ct. 1989 ("Agencies generally have authority to promulgate and enforce requirements that effectuate the statute's nondiscrimination mandate, 20 U.S.C. § 1682, even if those requirements do not purport to represent a definition of discrimination under the statute."). All such regulations must "be consistent with achievement of the objectives of" Title IX. 20 U.S.C. § 1682.

In 2001, following the Supreme Court's Gebser and Davis decisions, the Department issued a guidance document -- rather than a binding rule -- that adopted a broader scope of liability for administrative enforcement of Title IX than under the Gebser / Davis framework. U.S. Dep't of Educ., Off. for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (Jan. 19, 2001) ("2001 Guidance"), https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf. The guidance document defined sexual harassment as "unwelcome conduct of a sexual nature" that is "severe, persistent, or pervasive." Id. at vi, 2 (emphasis added) (quoting Off. for Civil Rights; Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12,034, 12,041 (Mar. 13, 1997) ). Actual notice was not needed to trigger liability. The school could be liable if a "responsible employee" reasonably "should have known" of the harassment, and "responsible employee" was defined broadly to include anyone a student would reasonably believe had the authority or duty to take action. Id. at 13.⁴

The Final Rule repudiates the 2001 Guidance and largely aligns the standards for administrative enforcement of Title IX with the Gebser / Davis framework that governs suits for monetary damages -- though it modifies or "adapts" that framework in important ways. 85 Fed. Reg. at 30,033. The Rule also introduces several due process protections for respondents accused of sexual harassment and limits the...