ACLU’s Challenge to the New Title IX Rule

On May 14, 2020, the ACLU filed suit on behalf of four organizations, challenging the new Title IX Rule issued by the Department of Education on May 6. The lawsuit takes issue with the new Rule’s disparity between its treatment of sex discrimination on the one hand, and race, national origin, and disability discrimination on the other. In particular, the complaint requests the following provisions of the new rule be declared invalid:

1. The definition of “sexual harassment” to which an institution must respond and the provision requiring dismissal of a formal Title IX complaint if it does not on its face meet that definition or meet the Rule’s definition of occurring in the recipient’s education program or activity 

In the Rule’s new definition of sexual harassment, for conduct to constitute “sexual harassment,” the conduct must be “severe, pervasive, and objectively offensive.” This is opposed to the previous definition, consistently used by the Agency since 1997, of “severe, pervasive, or objectively offensive.” In addition, the new provisions also exclude events that take place off campus or during study abroad outside the United States. (§§ 106.30, 106.44, 106.45, 106.8).

2. The provisions specifying that a recipient is only required to respond to sexual harassment if it has “actual knowledge”

In the Higher Ed setting, “actual notice” now requires that the notice be to an institution’s Title IX Coordinator or any official with the authority to institute corrective measures on behalf of the institution. Essentially, the new requirement mandates that college and graduate students contact the “right” employee before an institution has any obligation. Note: in the K12 setting, “actual knowledge” comes from notice to any employee. (§§ 106.30, 106.44(a)).

3. The provisions holding an institution accountable under Title IX only for “deliberate indifference”

The new Rule limits institutions’ obligations to respond to conduct that constitutes sexual harassment by allowing them to act in a manner that is unreasonable, so long as they are not “deliberately indifferent.” The standard is more lenient on institutions than other types of harassment cases, and also removes an institution’s obligation to address a campus-wide hostile environment beyond the effects on an individual complainant or respondent. (§ 106.44(a)-(b)).

4. The provision allowing institutions to use a “clear and convincing evidence standard” and requiring that standard if used for formal complaints of sexual harassment against employees

Institutions are now free to adopt a clear and convincing evidence standard for cases involving sexual harassment and assault even if they employ a preponderance of the evidence standard in all other kinds of proceedings. Moreover, institutions are now required to adopt the higher standard if they use it for sexual harassment complaints against faculty. (§ 106.45(b)(1)(vii)).

For the above listed reasons, the complaint filed by the ACLU asserts that the disparate treatment for sexual discrimination created by the new Rule compared to race, national origin, and disability discrimination should render the above provisions of the new Rule invalid.

For updates on this lawsuit as well as other legal challenges to the new Rule that are certain to follow, be sure to bookmark our New Regulations resources page at https://icslawyer.com/newregulations/ as well as the SUNY Joint Guidance on Federal Title IX Regulations.

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