SurvJustice Inc v. Devos

Background

SurvJustice Inc., Equal Rights Advocates, and Victim Rights Law Center are nonprofit advocacy organizations. They sought injunctive relief against the U.S. Department of Education, Secretary Elisabeth D. DeVos, and Acting Assistant Secretary for Civil Rights Kenneth L. Marcus. Their third amended complaint alleged that the Department’s September 22, 2017 guidance on enforcement of Title IX violated the Administrative Procedure Act (APA) because the agency action was arbitrary and capricious.

The 2017 guidance withdrew earlier guidance issued in 2011 and 2014 concerning procedures for investigating, adjudicating, and resolving student-on-student sexual misconduct allegations. Among other changes, it gave schools more discretion over the evidence standard, appeals, mediation, interim measures, investigation timing, treatment of off-campus conduct, and disclosure of the accused party’s identity.

Parties’ arguments

The plaintiffs argued that the 2017 guidance was reviewable under the APA because it was final agency action and arbitrary and capricious. The Department argued that the guidance was not final agency action and that it was not arbitrary or capricious.

The court had previously concluded that the guidance marked the completion of the Department’s decision-making process, satisfying the first part of the test for final agency action. The remaining question was whether the guidance determined rights or obligations or produced legal consequences.

Court’s analysis

The court focused on the Department’s funding assurances. Those documents require recipients to comply with Title IX and applicable regulations, and one assurance refers to Department “regulations, guidelines, and standards.” The plaintiffs argued that this language covered the 2017 guidance, meaning that failure to follow it could lead to termination of federal funding.

After reviewing a fuller summary-judgment record, the court rejected that argument. William E. Trachman, Senior Counsel to the Office for Civil Rights, stated based on his personal knowledge and official duties that the assurances did not include the 2017 guidance. He stated that enforcement actions would proceed under Title IX and its implementing regulations, not under the guidance. The court also relied on Department of Justice and Office of Management and Budget materials stating that guidance documents do not create binding legal obligations or serve as the basis for terminating federal funding.

The court concluded that the 2017 guidance itself did not add requirements to existing law. Although some schools changed their policies in response to the guidance, those practical effects did not establish final agency action because schools were not legally required to make those changes. The court also found that earlier resolution agreements and compliance documents involving the withdrawn guidance did not show that the Department had authority to enforce the 2017 guidance through formal proceedings.

Ruling

Because the guidance did not produce legal consequences, it was not final agency action under the APA. The plaintiffs therefore failed to establish a necessary element of their APA claim. The court denied the plaintiffs’ motion for summary judgment and granted the defendants’ motion for summary judgment. Judge Jacqueline Scott Corley did not reach the plaintiffs’ argument that the 2017 guidance was arbitrary and capricious.