Federal Judge John W. Broomes (credit: Wikimedia Commons)
On April 29, the U.S. Department of Education issued a final rule amending its regulations regarding sexual harassment and sexual assault. Schools had until August 1 to implement a large number of policy changes mandated by the new rule.
In response, a number of states and private groups filed lawsuits around the country to enjoin the August 1 implementation requirement while appeals of the substantive changes are pending. Three district courts have granted such injunctions covering 15 states.
On July 2, a federal court in Kansas granted an injunction covering the states of Kansas, Alaska, Utah and Wyoming. However, because the organizations suing in the case included the Young America’s Foundation (YAF), Female Athletes United and Moms for Liberty, the judge gave the plaintiffs additional time to list schools located outside those states that should be covered by his order. On Monday, July 15, the Judge added 364 colleges, including Cornell, because they have YAF members enrolled as students.
Advocates of free speech and due process have generally fought the new rules. The new rules would allow a single investigator model where the same Title IX Office staff member would both investigate the alleged conduct and also serve as the decision-maker in the case. The new rule would eliminate live testimony and cross examination when contested cases go to hearing. The old rule defined harassment using the Supreme Court’s standard from Davis v. Monroe County Board of Education, but the new rule wanted to ignore that standard when deciding if student speech was protected by the First Amendment. Finally, the new rule would allow a school to punish student journalists for reporting on a Title IX case, as if their reporting was a separate act of sexual harassment or retaliation.
There are many other issues to be litigated, because the final Title IX rule was much broader than the currently effective rule. Most notably, the new rule would cover discrimination based upon gender identity as well as upon biological sex.
Based upon this injunction, Cornell is not given the option of implementing the new rule until the injunction is lifted. The Biden administration can appeal the injunction to the U.S. Court of Appeals for the 10th Circuit.
Meanwhile, on Thursday, July 11, the U.S. House of Representatives voted 210 to 205 to overturn the final rule under the Congressional Review Act. However, the Senate must also vote before this could become effective.
On Wednesday, July 17, the U.S. Court of Appeals for the Sixth Circuit denied an emergency stay of an injunction by a different district court for the implementation of the new rule. In contrast, when the Trump Administration sought to implement a final rule on Title IX in 2020, no court would grant an injunction.
