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Did the Department of Education Just Win a Case by Claiming Their New Title IX Regulations Aren't Binding?

Posted by Joseph D. Lento | Nov 07, 2019 | 0 Comments

A lawsuit over the Department of Education's no-longer-new amendments to its Title IX regulations took an interesting turn in a federal district court in California. There, the court decided that the Department could not be sued because the amendments were not “final.”

Integral to that decision was the bold argument presented by the Office for Civil Rights, which claimed that the amended regulations were not actually mandatory.

Advocates Sue Over Rollbacks of Obama's Title IX Regulations

The lawsuit stems from the still-simmering disputes from when then-president Obama's Department of Education urged colleges to make it easier for alleged victims of sexual misconduct to come forward. That push had led to vague and ill-defined changes in Title IX policy.

Current President Trump's Department of Education has taken steps to roll back that political pressure. That guidance led to lawsuits by advocate organizations that had cheered the earlier changes.

Lawsuits Plagued by Procedural Issues

Those lawsuits were plagued with procedural issues and defenses.

In order for a new regulation to be challenged in court, it has to be “final.” Regulations that are final are the “consummation of the agency's decision-making process” and determine rights or obligations, “from which legal consequences will flow.”

In an attempt to win the lawsuit, the Department of Education made an interesting claim: The revised rules did not vest rights in anyone. There were no legal consequences of the changes.

This claim was especially interesting, considering the fact that the Department had been circulating two letters of assurance to colleges in the U.S. Those letters required institutions to assure the Department that they would comply with Title IX in order to receive federal funding.

Court Decides that the New Guidelines are Not Mandatory

In the recent decision SurvJustice Inc. v. Devos, a federal district court in California decided that the letters of assurance did not require schools to comply with the newest changes to Title IX.

A big impetus for this decision came in the form of testimony from the Senior Counsel to the Office for Civil Rights, who was a part of the crew that came up with the newest Title IX amendments. He said that, if the OCR initiated an enforcement action under the letters of assurance, “it would proceed under Title IX and its implementing regulations, not the 2017 Guidance.”

Because the letters of assurance did not require schools to follow the new Title IX rules, the court decided that the new rules were not “final” and could not be sued over.

Title IX Defense Lawyer Joseph D. Lento

Needless to say, the ruling – and especially the arguments presented by the OCR and the Department of Education – injects a lot of confusion into an already chaotic Title IX system. If the new amendments are not going to be enforced by the OCR, then what do schools have to do to comply with the law and continue to receive federal funding?

The uncertainty makes it even more important for accused students and faculty members to hire a Title IX defense lawyer. Call Joseph D. Lento at (888) 535-3686 or contact him online.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Joseph D. Lento has more than a decade of experience passionately fighting for the futures of his clients. Mr. Lento represents students and others in disciplinary cases and other proceedings at universities and colleges locally and nationwide while concurrently fighting in criminal courtrooms in Philadelphia, the Pennsylvania counties, and New Jersey. Mr. Lento has helped countless students, professors, and others in academia at more than a thousand universities and colleges across the United States. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide.

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