[Wsssc] FW: Judge dismisses lawsuit challenging DeVos' temporary Title IX rules

[Joe Holliday]

Colleagues: see below, FYI. This is one of the topics you suggested that AAG Bruce Marvin cover at the WSSSC meeting.  Joe

From: Katims, Casey (GOV) <casey.katims at gov.wa.gov<mailto:casey.katims at gov.wa.gov>>
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Subject: FYI: Judge dismisses lawsuit challenging DeVos' temporary Title IX rules

FYI

Judge dismisses lawsuit challenging DeVos' temporary Title IX rules

10/01/2018 08:48 PM EDT

A federal judge in California Monday tossed out a lawsuit challenging Education Secretary Betsy DeVos' temporary rules for schools handling sexual harassment allegations.

Magistrate Judge Jacqueline Scott Corley granted the Trump administration's motion to dismiss the lawsuit, ruling in part that the advocacy groups suing over the guidance lacked standing, which means they failed to show they were directly affected by the rules.

She ruled the guidelines are only temporary and don't constitute final agency action and she gave the groups 30 days to file an amended complaint.

The temporary guidance was provided for schools dealing with allegations of sexual harassment and assault after DeVos moved to scrap Obama-era Title IX guidance that she said "failed too many students."

The rules, issued last year in the form of a question-and-answer document, made a slew of changes, including allowing schools to use a higher standard of proof in campus disciplinary proceedings related to sexual violence and provide mediation in sexual assault cases if both sides agree to it.

The administration is expected to soon publish a proposed regulation that will replace the temporary guidance.

If schools changed their policies because of the 2017 guidance, Corley wrote in her ruling, it wasn't because the temporary rules compelled them to legally.

She wrote that "the 2017 Letter notes that it 'does not add requirements to applicable law,' and that it 'intends to implement [a revised Title IX policy] through a rulemaking process that responds to public comment."

"The language is ... discretionary, and largely relieves schools of previous obligations under the Rescinded Guidance," she wrote. "Simply put, if a school disagreed with the 2017 Guidance and chose not to follow it, it would suffer no legal consequences as long as it continued to comply with Title IX and its implementing regulations."

The groups, led by SurvJustice, which represents sexual assault survivors, had argued that the interim guidance provided the administration's "current definitive interpretation of arguably ambiguous Title IX regulations." The guidance has had real legal implications, including providing cover for schools sued by students and giving new marching orders to civil rights investigators, they alleged.

The other groups involved in the suit are Equal Rights Advocates and the Victim Rights Law Center.

The lawsuit argued the rules are based on "unfounded generalizations about women and girls." The groups said they had seen "a decline in the number of sexual violence and assault survivors willing to pursue justice through campus processes." And they argued schools are "not responding at all, or not responding as promptly," to students' complaints.

Corley ruled the groups did show they were directly affected in some ways - such as arguing they had to divert resources to help deal with the new rules - but they lacked standing for their equal protection claim because they "are not seeking to vindicate their own rights as an organization, but the constitutional rights of women in general."
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