State of New York v. United States Department of EducationState of New York v. United States Department of Education
JOHN G. KOELTL, District Judge:
This case is an action by the State of New York and the Board of Education for the City School District of the City of New York (“NYC DOE“), against the defendants, the United States Department of Education (“DOE“) and Elisabeth DeVos, as the Secretary of the DOE. On May 19, 2020, the DOE published a final rule in the Federal Register, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal
The plaintiffs now move pursuant to
I. Background
A. Legal Framework
Title IX of the Education Amendments of 1972 (“Title IX“) was enacted to “avoid the use of federal resources to support discriminatory practices” and “to provide individual citizens effective protection against those practices.” Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979). The statute provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
The statute‘s dual purposes are enforced by federal administrative agencies that disburse funding (“administrative enforcement scheme“) and by the courts through private litigation (“judicial enforcement scheme“). Congress expressly authorized an administrative enforcement scheme for Title IX. The DOE is authorized to promulgate rules, regulations, and orders, and may use “any . . . means authorized by law,” including the termination of funding, to effectuate the statute‘s restrictions. Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 638-39 (1999) (citation omitted). Under this administrative enforcement scheme, no action shall be taken until the DOE “has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means.”
Subsequently, the Supreme Court examined the conditions under which schools would be liable for monetary damages under Title IX for sexual harassment of students by teachers or peers in cases brought by private plaintiffs. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) (teacher-on-student harassment); Davis, 526 U.S. 629 (student-on-student harassment). Among other things, the Supreme Court‘s decisions established that a school could be subject to monetary liability only when a school exhibited “deliberate indifference” that subjected a student to harassment; that harassment must take place in a context “subject to the school district‘s control” and that liability exists for harassment “that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Davis, 526 U.S. at 644-45, 650. Further, a school is liable in damages only when an appropriate person, who is, “at a minimum, an official of the recipient entity with authority to take corrective action to end the discrimination,” “has actual knowledge of discrimination and fails to adequately respond.” Gebser, 524 U.S. at 290.
The DOE refers to the Supreme Court‘s definitions of actionable sexual harassment, actual knowledge, and deliberate indifference as the “Gebser/Davis framework.” 85 Fed. Reg. at 30,032-33. The Gebser/Davis framework for private claims for monetary damages was guided by analogy to the administrative enforcement mechanism of Title IX because the Supreme Court recognized that in fashioning a judicially-created private cause of action, the Court should be guided by the administrative mechanism that Congress explicitly provided in Title IX. Davis, 526 U.S. at 641; Gebser, 524 U.S. at 289 (“It would be unsound, we think, for a statute‘s express system of enforcement to require notice to the recipient and an opportunity to come into voluntary compliance while a judicially implied system of enforcement permits substantial liability without regard to the recipient‘s knowledge or its corrective actions upon receiving notice.“).
B. DOE Guidance
The Rule is the DOE‘s first regulation identifying sexual harassment as unlawful sex discrimination under Title IX. However, since 1997, the DOE has issued guidance discussing how schools should resolve allegations concerning sexual harassment and sexual violence. In 1997, the DOE published Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12,034 (Mar. 13, 1997) (“1997 Guidance“). The 1997 Guidance stated that “[i]n order to give rise to a complaint under Title IX, sexual harassment must be sufficiently severe, persistent, or pervasive that it adversely affects a student‘s education or creates a hostile or abusive educational environment.” 62 Fed. Reg. at 12,034.
C. The Rule
In late 2018, the DOE published a notice of proposed rulemaking, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 83 Fed. Reg. 61,462 (Proposed Nov. 29, 2018) (to be codified at
The Rule contains several provisions that depart from past DOE guidance. In the context of sexual harassment, the Rule defines “education program or activity” to “include[ ] locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.”
Notably, the Rule requires that schools have actual, rather than constructive, notice of sexual harassment before they are required to respond. Schools must “respond promptly in a manner that is not deliberately indifferent” but a “recipient is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of the known circumstances.”
The school must establish a grievance process that meets certain basic requirements,
[p]rovide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the recipient does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond.
Postsecondary institutions are required to provide for a live hearing, at which decision-maker(s) must permit each party‘s advisor of choice8 to conduct cross examination of other parties and witnesses.
The Rule prohibits retaliation against any individual and states that no person “may intimidate, threaten, coerce, or discriminate against any individual . . . because the individual has . . . participated or refused to participate in any manner in an investigation, proceeding, or hearing.”
In publishing the Rule, the DOE stated that it followed Executive Orders 12866 and 13563, which among other things, require that the DOE adopt a regulation only on a reasoned determination that the regulation‘s benefits justify its costs. 85 Fed. Reg. at 30,564. The DOE estimated that the Rule would result in a net cost of about 48 to 62 million dollars over ten years.
The Rule contains severability provisions that provide that if any provision is held invalid, the remainder of the subpart or the application to any person, act, or practice shall not be affected thereby. See
As the largest public school district in the nation, the NYC DOE serves over 1.1 million K-12 students and employs over 135,000 employees.
The plaintiffs filed this action on June 04, 2020. The plaintiffs allege that the Rule exceeds the DOE‘s statutory authority in violation of
II.
A preliminary injunction “is one of the most drastic tools in the arsenal of judicial remedies.” Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (citation omitted). To obtain a preliminary injunction, the plaintiffs must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). When the moving party seeks an injunction that will affect government action taken pursuant to a regulatory scheme, the plaintiffs must establish a “clear or substantial” likelihood of success on the merits. Sussman v. Crawford, 488 F.3d 136, 140 (2d Cir. 2007) (per curiam) (internal quotation marks and citations omitted). A showing of irreparable harm is “the single most important prerequisite
A. Likelihood of Success
1. Section 706(2) (C)
A reviewing court shall “hold unlawful and set aside agency action” that is “in excess of statutory . . . authority.”
The plaintiffs argue that the Rule exceeds the DOE‘s authority because it narrows the definition of “program or activity” and establishes prescriptive grievance procedures that fail to effectuate Title IX‘s protections against sex discrimination.
a.
Title IX defines program or activity as “all of the operations of” the school.
Moreover, the DOE‘s explanation of “program or activity” in the context of sexual harassment aligns with the Supreme Court‘s language in Davis, “that the harassment must take place in a context subject to the school district‘s control.” Davis, 526 U.S. at 645. The Supreme Court held that “[t]he statute‘s plain language” prohibiting any person from being “subject[ ] to discrimination” “confines the scope of prohibited conduct based on the recipient‘s degree of control over the harasser and the environment in which the harassment occurs.” Id. at 644. The DOE did not believe that the Supreme Court‘s definition was “an unreasonable interpretation,” “because the Supreme Court applied the language of the statute including the definitions of ‘program or activity’ provided in the statute.” 85 Fed. Reg. at 30,196. The DOE thus concluded that the Rule and the Supreme Court‘s approach to “program or activity” in the context of Title IX sexual harassment should be aligned. Id.
Because the DOE recognizes the existing definition of “program or activity” under Title IX and clarified that a “program or activity” includes examples that are aligned with the Supreme Court‘s analysis of a school‘s liability in the context of monetary damages, the DOE did not redefine program or activity in a manner in excess of its statutory authority.
b.
The plaintiffs argue that the Rule requires schools to maintain prescriptive grievance procedures that confer new rights onto individuals accused of sexual harassment and that this conferral of rights frustrates the DOE‘s statutory mandate of eliminating sex discrimination in schools. The plaintiffs acknowledge that Title IX provides both complainants and respondents with “the right to attend school free of sex discrimination.” Memorandum of Law in Support of Motion for Preliminary Injunction at 18. However, the plaintiffs argue that the Rule‘s grievance procedures, which allow respondents to make complaints for any alleged violations of the procedures, stray beyond the DOE‘s antidiscrimination mandate.
It is undisputed that the DOE has the authority to promulgate rules and regulations implementing Title IX. Thus, the DOE is authorized to “formulat[e] . . . policy” and make “rules to fill any gap left, implicitly or explicitly, by Congress.” Chevron, 467 U.S. at 843. In exercising its authority, the DOE determined that the grievance procedures in Section 106.45 were meant to further “the central purpose of Title IX, to provide protections from sex-discriminatory practices to all persons.” 85 Fed. Reg. at 30,240. In response to comments that the Rule allows respondents, but not complainants, to claim sex discrimination whenever a requirement of the grievance procedure is not met, the DOE stated that the Rule allows “either party equally to appeal a determination regarding responsibility on the basis of procedural irregularity.”
The DOE received comments from individuals with personal experiences navigating campus sexual misconduct proceedings that recipients applied grievance procedures in a discriminatory manner towards both complainants and respondents.
Accordingly, the plaintiffs have failed to show that there is a substantial likelihood that they would succeed on the Section 706(2)(C) claim.
2. Section 706(2) (A)
A reviewing court shall “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
The plaintiffs argue that the Rule is arbitrary and capricious for five main reasons: (1) it redefines key terms to narrow the scope of Title IX impermissibly; (2) it fails to justify a departure from decades of policy; (3) it does not consider important aspects of the problem; (4) it establishes a weaker standard for sexual harassment cases under Title IX relative to other forms of discriminatory harassment under other statutes; and (5) it conflicts with the Family Educational Rights and Privacy Act (“FERPA“),
a.
The plaintiffs argue that the Rule‘s definition of “program or activity,” “sexual harassment,” and “notice” impermissibly narrow the scope of Title IX based on an erroneous interpretation of the relevant case law.
As discussed above, the Rule provides examples of what would constitute a program or activity and does not redefine the term in contradiction to the statute. Moreover, the Rule‘s alignment with the Supreme Court definition in the context of monetary liability in a private damages lawsuit does not show a clear error in judgment.
The plaintiffs argue that the Rule‘s definition of sexual harassment as conduct on the basis of sex that is unwelcome conduct determined by a reasonable
While it is true that the 2001 Guidance stated that the Supreme Court decisions in Gebser and Davis created standards limited to monetary liability and not administrative enforcement, it also noted that the Guidance’s use of “severe, persistent, or pervasive” and the Supreme Court’s use of “severe, pervasive, and objectively offensive,” were ultimately consistent. In addition, the Rule‘s definition of sexual harassment is broader than just the Davis standard. The Rule also provides that quid pro quo harassment, as well as sexual assault, dating violence, domestic violence, and stalking, as defined under the Clery Act and the VAWA, all constitute harassment without regard to whether such action is “severe, pervasive, and objectively offensive” or denies a person equal access to the education program or activity.
The DOE recognizes that it was not required to adopt the definition of sexual harassment in the Gebser/Davis framework, but chose to do so, to “promote important policy objectives with respect to a recipient‘s legal obligations to respond to sexual harassment.” 85 Fed. Reg. at 30,032-33. The DOE received some comments that the “severe or pervasive” standard burdened First Amendment expression, for example, by punishing expression in the college context that exists for the exchange of ideas, even when words or ideas exchanged may offend others.
Ultimately, the DOE reasoned that using the “severe, pervasive, and objectively offensive” standard “helps ensure that Title IX is enforced consistent with the First Amendment,” while quid pro quo harassment and sex offenses under the Clery Act and the VAWA do not face any limitation as to severity, pervasiveness, or denial of equal access “because prohibiting such conduct presents no First Amendment concerns and such serious misconduct causes denial of equal educational access.”
The DOE similarly adopts the notice requirements of the Gebser/Davis framework, but “tailor[s]” them to the “unique context of administrative enforcement.”
The plaintiffs contend that the narrowing of these terms would impermissibly allow, or even demand, that schools ignore sex-based conduct that may impede or limit a student‘s access to educational opportunities. At oral argument, they argued that even the Supreme Court recognized that Title IX was focused on the protection of individuals from discriminatory practices, whereas other statutes that allowed for private damages, like Title VII, were aimed centrally to compensate victims of past discrimination. Gebser, 524 U.S. at 287. However, the Supreme Court specifically fashioned the standard for monetary liability for violations of Title IX to match the standards of Title IX‘s administrative enforcement scheme. See id. at 290 (“Because the express remedial scheme under Title IX is predicated upon notice to an ‘appropriate person’ and an opportunity to rectify any violation,
b.
When an agency changes an existing policy, it must explain its changed position and must also be aware that longstanding policies may have engendered serious reliance interests that must be taken into account. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (citing Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735, 742 (1996)). While an agency must “show that there are good reasons” for its new policy, it need not show that “the reasons for the new policy are better than the reasons for the old one.” Id. (emphasis in original).
The plaintiffs argue that the DOE failed to take into account the reliance interests of recipients, who had fashioned their procedures to comply with decades of DOE guidance and had relied on such guidance in drafting their training and investigation procedures and collective bargaining agreements and in complying with state and city laws.
The DOE acknowledged that several of its provisions departed from previous DOE Guidance and specifically stated in the Preamble that “when an agency changes its position, it must display awareness that it is changing position and show that there are good reasons for the new policy.” 85 Fed. Reg. at 30,505. As discussed above, the DOE explained its reasoning for clarifying examples of “program or activity,” creating a new definition of “sexual harassment,” and outlining to whom notice must be given for recipients to initiate grievance procedures. The DOE recognized that it was not required to, but chose to, use the Gebser/Davis framework as a starting point.
c.
A court will not “lightly” reach the conclusion that an agency action should be overturned as arbitrary and capricious because the agency entirely failed to consider an important aspect of the problem. See New York v. Dep’t of Justice, 951 F.3d 84, 122 (2d Cir. 2020).
The plaintiffs argue that the DOE failed to consider pervasive forms of harassment that affect multiple students and that the Rule provides for grievance procedures that focus only on individual complainants and respondents and ignore the effects of hostile school environments. However, the Rule allows recipients to consolidate formal complaints that arise out of the same facts or circumstances. In addition, the DOE acknowledged that the Rule departs from prior guidance documents “by describing sexual harassment as actionable when it effectively denies a person equal access to education rather than when the sexual harassment creates a hostile environment.” 85 Fed. Reg. at 30,170-71. The DOE declined to use the hostile environment concept, “which originated to describe the kind of hostile or abusive workplace environment sexual harassment may create under Title VII,”
The plaintiffs also argue that the DOE failed to consider the unique burdens on students of different age or ability levels. While the Rule creates grievance procedures that schools must follow, the procedures account for differences between postsecondary and K-12 schools. As discussed above, the pool to which notice may be given is broader for students of K-12 than for postsecondary institutions. In addition, K-12 schools are not required to hold live-hearings in their grievance procedures. While the plaintiffs argue that even the use of written questions is developmentally improper for K-12 students, the DOE plainly considered the differences between postsecondary and K-12 schools in balancing the implementation of Title IX and considerations of due process.
Finally, the plaintiffs argue that the DOE relied on a flawed cost-benefit analysis that failed to consider the costs of unaddressed sexual harassment on students and schools, the financial and educational costs of reduced reporting, and the costs of compliance to implement the Rule during the COVID-19 pandemic. A court must “review an agency‘s cost/benefit analysis deferentially.” Am. Trucking Ass’ns, Inc. v. Fed. Motor Carrier Safety Admin, 724 F.3d 243, 254 (D.C. Cir. 2013). “[W]hen an agency decides to rely on a cost-benefit analysis as part of its rulemaking, a serious flaw undermining that analysis can render the rule unreasonable.” Nat‘l Ass’n of Home Builders v. Envtl. Prot. Agency, 682 F.3d 1032, 1040 (D.C. Cir. 2012). However, the plaintiffs’ “burden to show error is high.” Id. (internal quotation marks and citations omitted). It is not for the Court to undertake its own economic analysis and “substitute the Court‘s views for those of the agency.” Am. Trucking Ass’ns, Inc., 724 F.3d at 254. The DOE denies that it actually relied on the cost-benefit analysis; in publishing the Rule, the DOE noted that “our decisions regarding the final regulations rely on legal and policy considerations designed to effectuate Title IX‘s civil rights objectives, and not on the estimated cost likely to result from these final regulations.” 85 Fed. Reg. at 30,097. However, the plaintiffs point out that the Rule also states “in deciding among alternative approaches, the Department is bound to choose the option that maximizes benefits and minimizes costs.”
In any event, the plaintiffs have not shown a clear likelihood of success that the DOE neglected to consider important parts of the cost-benefit analysis. The DOE acknowledged that it did not take into account the costs associated with underlying incidents of sexual harassment and assault in part because it “had insufficient evidence to assume the final regulations will have an effect on the underlying rate of sexual harassment.”
d.
The plaintiffs argue that the Rule establishes a weaker standard for Title IX sexual harassment cases than other forms of discriminatory harassment in Title VI and Section 504 of the Rehabilitation Act and that these statutes must be construed similarly.
The plaintiffs point out that the language of Title IX is identical to the language of Title VI except for the substitution of the word “sex” for “race, color, or national origin,” Cannon, 441 U.S. at 695; that courts have interpreted Title IX and Title VI similarly in allowing claims under
e.
The plaintiffs argue that Section 106.45(b)(5)(vi)’s requirement that recipients provide “both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the recipient does not intend to rely,” conflicts with a school‘s obligations under FERPA not to disclose students’ sensitive information. However, the DOE noted that a recipient should interpret Title IX and FERPA in a manner to avoid any conflicts. The DOE also noted that past DOE guidance interpreted Title IX to override FERPA in the event of a direct conflict. 85 Fed. Reg. at 30,426 (citing 2001 Guidance at vii).
Furthermore, the Rule is not in direct conflict with FERPA. In publishing the FERPA regulation, the DOE stated that “a parent (or eligible student) has a right to inspect and review any witness statement that is directly related to the student, even if that statement contains information that is also directly related to another student, if the information cannot be segregated and redacted without destroying its meaning.” 73 Fed. Reg. 74,806, 74,832-33. When it published the Rule, the DOE explained that it
does not think that evidence obtained as part of an investigation pursuant to these final regulations that is directly related to the allegations raised in a
formal complaint can be segregated and redacted because the evidence directly relates to allegations by a complainant against a respondent and, thus, constitutes an education record of both the complainant and a respondent.
85 Fed. Reg. at 30,427. Although parties may disagree with the DOE‘s conclusion that directly relevant evidence cannot be segregated and redacted and thus the evidence constitutes an education record, such an interpretation is not contrary to FERPA or its implementing regulations.
Despite the Rule‘s changes to the previous guidance that the DOE has promulgated since 1997, the plaintiffs have failed to show that the DOE’s reasoning underlying the Rule lacks rational connection to the interests articulated by the agency or exhibited a clear error in judgment. While the plaintiffs disagree with the choices made by the DOE, they have failed to show that those decisions were arbitrary or capricious.
Accordingly, the plaintiffs have failed to show that there is a substantial likelihood that they would succeed on their Section 706(2)(A) claim.
3. Section 706(2) (D)
A reviewing court shall “hold unlawful and set aside agency action” that is “without observance of procedure required by law.”
The plaintiffs argue that three provisions concerning preemption, retaliation, and permissive dismissal were not logical outgrowths of the Proposed Rule and appeared for the first time in the Rule. At oral argument, the plaintiffs acknowledged that the alleged violations of Section 706(2)(D) would not, on their own, be sufficient to support a preliminarily injunction barring enforcement of the Rule, but should be considered in conjunction with other bases to support the issuance of an injunction.
Regardless of whether the Rule′s preemption provision, Section 106.6(h), was included in the Proposed Rule, any error for not including the provision would be harmless. Federal law supersedes state law when state law conflicts with federal law such that “compliance with both federal and state regulations is a physical impossibility” or state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Clean Air Markets Grp. v. Pataki, 338 F.3d 82, 87 (2d Cir. 2003) (citing Hillsborough Cty., Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985)).
At oral argument, the DOE explained that while the Rule does not allow retaliation for any individual who refuses to participate in an investigation, it does allow a recipient to continue with a formal investigation and discipline any party who refuses to participate accordingly; any disciplinary actions would flow from the investigation and hearing procedure and would not be retaliation.
Finally, the school‘s permissive dismissal provisions are merely permissive,
Accordingly, the plaintiffs have failed to show that there is a substantial likelihood that they would succeed on the Section 706(2)(D) claim. As the plaintiffs acknowledged at oral argument, none of these provisions would be a basis to enjoin implementation of the Rule. Indeed, more generally, there are ample severability provisions in the Rule such that if individual provisions in the Rule were ever determined to be invalid, the provisions could be severed and the remainder of the Rule would continue to be enforced.
B. Irreparable Harm
The plaintiffs must establish that absent a preliminary injunction they will likely suffer “an injury that is neither remote nor speculative, but actual and imminent and one that cannot be remedied if a court waits until the end of trial to resolve the harm.” Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005) (internal quotation marks and citation omitted). Irreparable harm is “injury for which a monetary award cannot be adequate compensation[.]” Jackson Dairy Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam). “Likelihood sets, of course, a higher standard than possibility.‘” JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990).
The economic harm that the plaintiffs estimate they will suffer stems from the costs of amending policies and procedures, conducting training, hiring new staff, and analyzing potential legal conflicts created by the Rule. The Second Circuit Court of Appeals has instructed that “ordinary compliance costs are typically insufficient to constitute irreparable harm.” Freedom Holdings, Inc., 408 F.3d at 115. See Am. Hosp. Assʼn v. Harris, 625 F.2d 1328, 1331 (7th Cir. 1980) (“[I]njury resulting from attempted compliance with government regulation ordinarily is not irreparable harm.“); see also A.O. Smith Corp. v. FTC, 530 F.2d 515, 527-28 (3d Cir. 1976). Were the rule otherwise, the requirement of a “likelihood of immediate and irreparable injury” would be eliminated in any case challenging governmental regulatory action because there will almost always be some compliance costs in education and training needed to comply with the new regulations.
But while “ordinary compliance costs” are not “typically” sufficient to satisfy the requirement of likely immediate and irreparable injury, there are plainly cases where such compliance costs are extensive and atypical, often with significant harm to persons or entities who are adversely affected by the new government regulation. See, e.g., New York v. United States Dep’t of Homeland Sec., No. 19-3591, 2020 WL 4457951, at *30 (2d Cir. Aug. 4, 2020) (finding irreparable injury from final rule rendering inadmissible to the United States any non-citizen who is likely to become a “public charge“). But this is not such a case.
The economic harm that the plaintiffs estimate they will suffer stems from the costs of amending policies and procedures, conducting training, hiring new staff, and analyzing legal conflicts. But much of these costs should have been incurred already because the Rule is scheduled to go into effect shortly. At oral argument the plaintiffs acknowledged that they have undertaken efforts to try to comply with the Rule‘s requirements while this litigation has been pending. They stated, however, that some provisions, such as the Rule‘s requirement that decision-makers must be different from the Title IX Coordinator or investigators, may require the hiring of additional staff, and compliance with those
Another injury that the plaintiffs allege constitutes irreparable harm is the potential impact on the plaintiffs’ ability to respond to the COVID-19 pandemic by requiring the plaintiffs to divert scarce resources to implementing the Rule’s new requirements. It is apparent that the responsibilities of the plaintiffs to respond appropriately to the COVID-19 pandemic are wide-ranging, numerous, and serious. The State University of New York Downstate Health Sciences University‘s hospital was a COVID-only facility from late March until early June, during which the pandemic devastated the health and security of New York City; the medical staff bore, and continue to bear, the tremendous physical, mental, and professional burden of trying to save lives. However, this is an unpersuasive reason to defer applying the Rule to schools faced with sexual harassment issues after the effective date of the Rule. There is nothing about the Rule or compliance with the Rule that requires resources to be taken away from efforts to combat the horrific COVID-19 pandemic. The plaintiffs can choose to fund their compliance efforts from whatever appropriate budgetary source they choose, presumably from the same budgetary sources they have previously used for Title IX compliance efforts.
The plaintiffs also argue that the Rule will irreparably harm students and impede their interests in attending school in a safe, nondiscriminatory school environment.13 After publishing its Proposed Rule, the DOE undertook a thorough analysis of the nearly 125,000 comments it received and revised some parts of the Proposed Rule in response. The comments discussed in the DOE‘s analysis showed that there were bitter disputes about which policy was the most appropriate to implement in almost every aspect of the Rule‘s provisions. Nevertheless, on its face, the Rule states that it aims to make processes equal for both complainants and respondents and provides that complainants receive supportive measures and that a fair grievance procedure be followed before discipline may be imposed on respondents. Rather than harming students, the Rule has the potential to benefit both complainants and respondents by providing procedural guidance for grievance procedures. This process helps not only respondents but also complainants who are given greater assurance that if they prevail in the grievance proceeding, that result will not be overturned because the process did not comply with due process. The DOE’s decision to balance competing interests
Accordingly, the plaintiffs have failed to show that implementation of the Rule will likely cause immediate and irreparable injury necessary to support a preliminary injunction.
C. Balance of Equities and the Public Interest
Under the last injunction factor, courts “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief,” as well as “the public consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24. “To establish that the balance of hardships tips in their favor, the plaintiffs must demonstrate that the harm they would suffer absent the relief sought is substantially greater than the harm the defendants would suffer if the injunction were granted.” Greylock Glob. Opportunity Master Fund Ltd. v. Province of Mendoza, No. 04-CV-7643, 2004 WL 2290900, at *4 (S.D.N.Y. Oct. 12, 2004) (citation omitted).
The Rule establishes new standards that depart from prior DOE guidance; as evident in the 125,000 comments received, commentators and interested parties vary in their support and opposition to the Rule‘s provisions, and the range of topics on which advocates fiercely contest or support the Rule is far-reaching. While the plaintiffs argue that the Rule will have detrimental effects on the health and well-being of children by forcing them to participate in proceedings and being subject to trauma and delayed resolution, the DOE argues that schools have wide latitude to implement appropriate and tailored supportive measures to ensure safety and deter harassment and that the grievance procedures allow schools to conduct fair and thorough investigations prior to determining responsibility. The DOE also contends that its prior guidance has created confusion and uncertainty among recipients and that the clarity of the Rule will contribute to constitutional due process in the Title IX context. Various amici parties have stated that the Rule’s provisions provide due process rights to respondents, without which many may have faced sexual discrimination in recipients’ current grievance procedures. See, e.g., Brief of Amici Curiae Families Advocating for Campus Equality, Dkt. No. 74. Because the Rule itself does confer protections on individuals who are entitled to Title IX’s protections, the plaintiffs have failed to show that the Rule‘s implementation will necessarily harm students. Further, while the plaintiffs will have to undertake procedures to comply with the Rule‘s requirements, the DOE also has a valid interest in enforcing its preferred Title IX antidiscrimination policy. On balance, the plaintiffs have not shown that their alleged injuries would be substantially greater than those of the defendants. Further, the Rule’s new provisions that further the DOE’s interests in due process and First Amendment rights in the context of administrative enforcement of Title IX’s provisions are also in the public interest. Based on these factors, the balance of equities and the public interest do not favor an injunction.
CONCLUSION
The foregoing constitutes this Court‘s findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a)(2). The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. The plaintiffs’ motion for a preliminary injunction, and in the alternative, a stay, is
SO ORDERED.
Dated: New York, New York August 9, 2020
/s/ John G. Koeltl
John G. Koeltl
United States District Judge