477 F.Supp.3d 279
S.D.N.Y.2020Background
- Plaintiffs (State of New York and NYC Board of Education) challenged the U.S. Department of Education’s May 19, 2020 Title IX final rule (effective Aug. 14, 2020) governing definitions of sexual harassment and required grievance procedures.
- The Rule narrows and clarifies terms (e.g., "program or activity," "sexual harassment," and "actual notice"), treats quid pro quo and certain Clery/VAWA offenses as per se harassment, requires equitable supportive measures, and mandates postsecondary live hearings with cross-examination via advisors.
- DOE issued the Rule after notice-and-comment (nearly 125,000 comments) and relied on the Gebser/Davis framework and cost estimates; recipients (e.g., NYC DOE) cited significant implementation costs and COVID-19 related burdens.
- Plaintiffs sought a preliminary injunction (or stay under 5 U.S.C. § 705) alleging the Rule exceeds statutory authority (Chevron), is arbitrary and capricious (State Farm), and violated notice-and-comment requirements.
- The district court denied the motion, finding plaintiffs failed to show a likelihood of success on the merits, failed to show irreparable harm beyond ordinary compliance costs, and that the balance of equities and public interest do not favor an injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DOE exceeded statutory authority by narrowing "program or activity" and prescribing grievance procedures (5 U.S.C. § 706(2)(C)) | Rule unlawfully narrows the statutory "all operations" definition and impermissibly imposes procedural rights that undermine Title IX's remedial purpose | DOE construed "program or activity" consistently with Supreme Court's Davis context and plausibly adopted grievance procedures to ensure nondiscrimination for both complainants and respondents | Court: DOE acted within its authority; plaintiffs unlikely to prevail on §706(2)(C) claim |
| Whether the Rule is arbitrary and capricious (5 U.S.C. § 706(2)(A)) — definitions, departures from prior guidance, notice, cost analysis, FERPA conflict | DOE's new definitions (e.g., "severe, pervasive, objectively offensive," "actual notice") depart from longstanding guidance, ignore reliance interests, poorly analyze costs, and conflict with FERPA | DOE reasonably grounded changes in Gebser/Davis precedent, considered reliance and K-12/postsecondary differences, addressed cost uncertainties, and reconciled FERPA with Title IX disclosure needs | Court: DOE provided rational explanations; Rule not arbitrary or capricious; plaintiffs unlikely to prevail |
| Whether DOE violated notice-and-comment procedures by adding preemption, retaliation, and permissive dismissal provisions that were not logical outgrowths (5 U.S.C. § 706(2)(D)) | These provisions appeared for first time in final rule and deprived parties of fair notice | DOE and court: either provisions were logical outgrowths or any omission would be harmless because federal supremacy/clarifying explanations apply | Court: No substantial likelihood of success on §706(2)(D) claim; not a basis to enjoin Rule |
| Whether plaintiffs will suffer irreparable harm and whether equities/public interest favor injunctive relief | Implementation costs, diversion of COVID-19 resources, and alleged harms to students (trauma, unsafe schools) constitute irreparable injury | Costs are ordinary compliance expenses; plaintiffs already preparing to comply; Rule protects due process and may benefit complainants and respondents; public interest favors enforcement | Court: Plaintiffs failed to show likely irreparable harm; balance of equities and public interest do not support injunction |
Key Cases Cited
- Cannon v. University of Chicago, 441 U.S. 677 (1979) (recognizing a private right of action under Title IX)
- Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998) (setting actual-notice/deliberate-indifference standard for Title IX monetary liability)
- Davis v. Monroe County Board of Education, 526 U.S. 629 (1999) (defining actionable student-on-student harassment: severe, pervasive, objectively offensive standard)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (two-step agency deference framework)
- Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983) (arbitrary-and-capricious review standard)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (preliminary injunction standard)
- FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (requirements for reasoned explanation when an agency changes course)
- Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007) (final rule must be a logical outgrowth of proposed rule)
- Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016) (unfair procedures against respondent can constitute sex discrimination)