In our last blog post, we discussed the outcome of a crucially important Title IX case from California – SurvJustice Inc. v. DeVos. Here, we discuss the potential ramifications of the arguments that the Department of Education and its Office for Civil Rights advanced to win it.
SurvJustice Inc. v. DeVos
The case revolved around the recent amendments to the Title IX enforcement structure that the Trump administration and Betsy DeVos proposed in 2017. As you may recall, those amendments focused on rolling back the extreme protections that had been afforded to alleged victims of sexual misconduct under President Obama's Department of Education.
A federal court in California recently dismissed the case because the plaintiffs – all non-profit advocacy organizations – were not allowed to sue to block the new rules because they were not “final.”
The court ruled this way because it was persuaded by the Department of Education's claim that the rules had not endowed anyone with rights or obligations.
In short, the Department of Education and the Office for Civil Rights claimed that the amendments were not mandatory.
If New Rules are Optional, What Have Schools Been Doing?
Colleges across the country have been on a Title IX roller coaster ride for the past few years. Ever since the Obama administration issued new Title IX guidance that was designed to make it easier for alleged victims to come forward, schools have had to drastically alter their Title IX investigation methods.
First, they had to bend over backward to give alleged victims the space they wanted. Colleges had to redraw the rules for sexual misconduct investigations to cater to the demands of alleged victims.
Then, the Trump administration rolled back those rules to give accused students the due process they deserved and that they had enjoyed before. Many of the changes that the schools had made to their Title IX enforcement systems now had to get thrown away – to the shock, dismay, and anger of many students who wanted them.
Throughout, colleges have acted with the understanding that not complying with these rules would lead to their federal funding being stripped away. The stakes simply could not be higher for them.
But now the Department of Education is on record saying that the rules they had just created – the ones that sent colleges on an unpopular scramble to protect the due process rights of the accused – are not actually mandatory. This is in spite of the letters of assurance that the OCR had sent to colleges across the country, demanding that they agree to comply with Title IX rules in order to receive federal funding.
It would not be surprising to see colleges try to return to the prior, Obama-era standards for Title IX cases, now. They were more popular for students, despite the fact that they violated the rights of the accused.
Title IX Defense Lawyer Joseph D. Lento
In the end, the OCR's arguments in SurvJustice do little other than to undermine the few protections and little certainty that had been won on the Title IX front.