State of New York v. United States Department of Education

Background

The State of New York and the Board of Education for the City School District of the City of New York (NYC DOE) sued the United States Department of Education and Elisabeth DeVos, identified in the opinion as the Secretary of the Department of Education. The challenge concerned a Department rule titled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.” The rule was scheduled to take effect on August 14, 2020.

The rule defines sexual harassment under Title IX and establishes grievance procedures that federally funded educational institutions must follow when deciding sexual-harassment complaints. Among other provisions, it defines covered education programs and activities, establishes three categories of sexual harassment, requires actual notice in specified circumstances, requires supportive measures and grievance procedures, and requires different procedures for postsecondary and K-12 schools. The rule also includes requirements concerning evidence review, advisors, hearings or written questions, written decisions, retaliation, and conflicts with state or local law.

The plaintiffs alleged that the rule exceeded the Department’s statutory authority, was arbitrary and capricious, abused the Department’s discretion, was otherwise unlawful, and was adopted without procedures required by law under the Administrative Procedure Act. They moved for a preliminary injunction under Federal Rule of Civil Procedure 65. Alternatively, they sought a stay of the rule’s effective date under 5 U.S.C. § 705.

The court’s analysis

For a preliminary injunction, the plaintiffs had to show a likelihood of success on the merits, likely irreparable harm without preliminary relief, and that the balance of equities and the public interest favored an injunction. Because the federal government was a party, the last two factors were considered together. The court applied the same standard to the requested stay.

Statutory authority. The plaintiffs argued that the Department exceeded its authority by narrowing the meaning of “program or activity” and imposing grievance procedures that did not adequately protect against sex discrimination. The court rejected those arguments for purposes of preliminary relief. It found that the rule’s description of covered locations and circumstances was consistent with the Supreme Court’s discussion of school control in Davis v. Monroe County Board of Education. It also concluded that Title IX authorized the Department to make rules filling gaps in the statute and that the Department could require procedures intended to protect both complainants and respondents from sex discrimination.

Arbitrary-and-capricious challenge. The plaintiffs argued that the rule improperly narrowed important definitions, failed to justify a departure from earlier Department guidance, ignored important aspects of sexual harassment and its effects, adopted weaker standards than those under other federal antidiscrimination laws, and conflicted with the Family Educational Rights and Privacy Act.

The court concluded that the plaintiffs had not shown a substantial likelihood of success on these arguments. It found that the Department explained its choice to use definitions based in part on the Supreme Court’s Title IX decisions concerning monetary liability. The court noted that the rule also separately covers quid pro quo harassment and certain offenses, including sexual assault, dating violence, domestic violence, and stalking, without requiring the same severity, pervasiveness, and objective-offensiveness showing.

The court also found that the Department acknowledged changes from earlier guidance and gave reasons for those changes, including its stated goals of providing clarity, protecting both parties, addressing First Amendment concerns, and accounting for differences between postsecondary and K-12 schools. The court concluded that the Department had considered reliance interests, the effects of harassment, differences among students and educational settings, and the available cost information sufficiently under the deferential standard of review.

Regarding the alleged conflict with the Family Educational Rights and Privacy Act, the court held that the rule was not in direct conflict with that statute. The court recognized that parties could disagree with the Department’s interpretation of when evidence may be segregated or redacted, but concluded that the interpretation was not contrary to the statute or its regulations.

Notice-and-comment procedures. The plaintiffs argued that provisions concerning preemption, retaliation, and permissive dismissal were not logical outgrowths of the proposed rule. The court concluded that the plaintiffs had not shown a substantial likelihood of success on this claim. It found that any error involving the preemption provision would be harmless, accepted the Department’s explanation of how the retaliation provision operated, and found that the permissive dismissal provisions would not justify blocking the rule. The court also noted the rule’s severability provisions.

Irreparable harm. The plaintiffs identified compliance costs, including expenses for changing policies and procedures, training, hiring staff, and analyzing possible legal conflicts. The court held that these were ordinary compliance costs and that the plaintiffs had not shown that the costs amounted to irreparable harm. It also rejected the argument that implementation would necessarily divert resources from responding to the COVID-19 pandemic.

The plaintiffs also argued that students would be harmed and would face obstacles to attending school in a safe, nondiscriminatory environment. The court concluded that the plaintiffs had not shown an actual and imminent likelihood of irreparable harm to students. It noted that the rule provided supportive measures and procedures intended to protect both complainants and respondents.

Balance of equities and public interest. The court concluded that the plaintiffs had not shown that their injuries would be substantially greater than the Department’s injuries if the rule were blocked. It found that the Department had a valid interest in enforcing its chosen Title IX policy and that the rule’s provisions concerning due process and First Amendment interests in administrative enforcement furthered the public interest.

Disposition

Judge John G. Koeltl denied the plaintiffs’ motion for a preliminary injunction and, in the alternative, a stay. The court directed the Clerk to close Docket No. 18. The opinion addressed the request for preliminary relief; it did not state that the underlying Administrative Procedure Act claims had been finally resolved.