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Pennsylvania v. DeVos, No. 1:20-cv-1468 (D.D.C. August 12, 2020); New York v. U.S. Dep't of Educ., 20-cv-4260, (S.D.N.Y. Aug. 9, 2020)

In two similar cases in which the AAUP joined amicus briefs, the district courts for the District of Columbia and for the Southern District of New York denied motions for preliminary injunctions seeking to delay the August 14, 2020, deadline for the implementation of Title IX regulations issued by the Trump administration. On May 19, 2020 the Trump administration issued new Title IX regulations, effective August 14, 2020, that significantly changed multiple aspects of Title IX as applied to higher education institutions, including significantly modifying the complaint investigation and hearing process, the definition of harassment, and the rights of the accused. In both cases, plaintiffs sued the administration claiming that the regulations should be invalidated, and they sought a preliminary injunction delaying the implementation of the regulations. Both courts denied the request for a preliminary injunction. The DC court explained that “although Plaintiffs have raised serious arguments about certain aspects of the Rule, they have not established a likelihood of success on their claims, nor have they established that they are likely to suffer substantial irreparable harm pending further litigation.” The courts’ decisions are not a final ruling on the underlying claims that the regulations should be invalidated, and those claims will continue to be litigated.

The cases arose from the Trump administration’s May 19, 2020, issuance of new Title IX regulations. These regulations mandated massive changes to the ways in which universities handle Title IX investigations and to the rights of the parties in these investigations. The administration required compliance with the new regulations by August 14, 2020. In the DC case, eighteen state attorneys general sued the administration. In the New York case, 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 administration. In both cases plaintiffs claimed that the regulations should be invalidated, inter alia, as violating the Administrative Procedures Act and being arbitrary and capricious. They also filed motions for preliminary injunctions seeking to prevent the implementation of the rule pending the resolution of the underlying challenge to the regulations.

In both cases the American Council on Education filed an amicus brief, joined by AAUP and numerous other higher education association, supporting the plaintiffs’ request for the preliminary injunction. The amicus briefs did not address the plaintiffs’ claims that the regulations should be invalidated. The amicus briefs submitted to the district courts for the District of Columbia and for the Southern District of New York argued that the August 14, 2020, deadline is unreasonably short to implement the regulations, particularly in the context of the COVID-19 global pandemic. The briefs recognized the need to involve faculty in updating institution policies. “[T]here is the need to update faculty handbooks and manuals, which outline how disciplinary proceedings are conducted for both unionized and non-unionized faculty members. In keeping with established principles of shared governance, academic freedom, and tenure, faculty handbooks and manuals are developed through institution-specific, multi-layered governance bodies, often following extensive deliberative proceedings across the whole of the institution.” Further, university “employees are often unionized, and their disciplinary processes are often written into existing collective-bargaining and other agreements, which in turn set predetermined time periods during which terms cannot be re-bargained.” The briefs concluded that the short deadline for compliance, particularly during the COVID-19 crisis, did not enable institutions to meet their obligations, and “will almost assuredly negatively affect the quality of the policies and procedures that institutions scramble to craft in order to meet the arbitrarily set deadline.”

In their decisions the courts only addressed the plaintiffs’ motions for a preliminary injunction, or a stay, that would have delayed the August 14, 2020, effective date of the regulations. The three most important factors in granting a preliminary injunction are whether plaintiffs can establish that they have a likelihood of success on the merits, whether plaintiffs have established that they will suffer imminent irreparable injury, and whether the balance of the hardships and the public interest warrant an injunction. Both courts found that plaintiffs did not establish a likelihood of success on the merits. The courts also found that plaintiffs failed to show that the final rule's implementation was likely to cause imminent irreparable harm, the issue addressed by the amicus brief, because the costs of compliance are not sufficiently substantial relative to recipients' overall budgets, and plaintiffs did not demonstrate that compliance with the final rule would impair their ability to respond to the COVID-19 pandemic. Finally, the courts both found that the balance of hardships and the public interest do not warrant an injunction.