Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 1 of 19
ADRMOP,APPEAL,CLOSED,CONSENT
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:18−cv−00535−JSC

SurvJustice Inc et al v. Devos et al Assigned to: Magistrate Judge Jacqueline Scott Corley Case in other court: USCA#:19−17555 Cause: 05:702 Administrative Procedure Act
Plaintiff

Date Filed: 01/25/2018 Date Terminated: 11/01/2019 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

SurvJustice Inc

represented by Jennifer Abby Reisch Equal Rights Advocates 1170 Market Street Suite 700 San Francisco, CA 94102 415−621−0672 x384 Fax: 415−621−6744 Email: jreisch@equalrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karianne Melissa Jones Democracy Forward Foundation P.O. Box 34553 Washington, DC 20043 (202) 448−9090 Fax: Email: kjones@democracyforward.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexandra Brodsky 11 Dupont Circle NW Suite 800 Washington, DC 20036 202−956−3087 Email: abrodsky@nwlc.org TERMINATED: 07/24/2018 PRO HAC VICE

Alice Abrokwa National Center for Youth Law 1313 L ST NW Suite 130 Washington, DC 20005 202−868−4786 Email: aabrokwa@youthlaw.org PRO HAC VICE ATTORNEY TO BE NOTICED

Elizabeth Tang National Womens Law Center 11 Dupont Circle NW Suite 800 Washington, DC 20036 202−588−5180 Email: etang@nwlc.org PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 2 of 19
Emily Martin 11 Dupont Circle NW Suite 800 Washington, DC 20036 202−588−5180 Email: emartin@nwlc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Javier M. Guzman Democracy Forward Foundation 1333 H Street, N.W. Washington, DC 20005 202−448−9090 Email: jguzman@democracyforward.org TERMINATED: 12/06/2019
Leecia Jo Welch National Center for Youth Law 1212 Broadway Suite 600 Oakland, CA 94612 (510) 835−8098 Fax: (510) 835−8099 Email: lwelch@youthlaw.org ATTORNEY TO BE NOTICED
Neena Chaudhry 11 Dupont Circle NW Suite 800 Washington, DC 20036 202−588−7607 Email: nchaudhry@nwlc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Robin Frances Thurston Democracy Forward Foundation P.O. Box 34553 11th Floor Washington, DC 20043 (202) 448−9090 Fax: Email: rthurston@democracyforward.org ATTORNEY TO BE NOTICED
Seth Michael Galanter National Center for Youth Law 1313 L Street NW, Suite 130 Washington, DC 20005 United Sta (202) 868−4782 Email: sgalanter@youthlaw.org PRO HAC VICE ATTORNEY TO BE NOTICED
Skye L. Perryman Democracy Forward Foundation P.O. Box 34553 Washington, DC 20043 (202) 448−9090 Fax: (202) 701−1775 Email: sperryman@democracyforward.org TERMINATED: 04/25/2018

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 3 of 19

Plaintiff Equal Rights Advocates

Sunu Chandy 11 Dupont Circle NW Suite 800 Washington, DC 20036 202−588−5180 Email: schandy@nwlc.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jennifer Abby Reisch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karianne Melissa Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Brodsky (See above for address) TERMINATED: 07/24/2018 PRO HAC VICE
Alice Abrokwa (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Tang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Martin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Javier M. Guzman (See above for address) TERMINATED: 12/06/2019
Leecia Jo Welch (See above for address) ATTORNEY TO BE NOTICED
Neena Chaudhry (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robin Frances Thurston (See above for address) ATTORNEY TO BE NOTICED
Seth Michael Galanter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Skye L. Perryman

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 4 of 19

Plaintiff Victim Rights Law Center

(See above for address) TERMINATED: 04/25/2018
Sunu Chandy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jennifer Abby Reisch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karianne Melissa Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Brodsky (See above for address) TERMINATED: 07/24/2018 PRO HAC VICE
Alice Abrokwa (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Tang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Martin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Javier M. Guzman (See above for address) TERMINATED: 12/06/2019
Leecia Jo Welch (See above for address) ATTORNEY TO BE NOTICED
Neena Chaudhry (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robin Frances Thurston (See above for address) ATTORNEY TO BE NOTICED
Seth Michael Galanter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Skye L. Perryman (See above for address) TERMINATED: 04/25/2018

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 5 of 19

V. Defendant Elisabeth DeVos in her official capacity as Secretary of Education
Defendant Candice Jackson in her official capacity as Acting Assistant Secretary for Civil Rights TERMINATED: 04/18/2019
Defendant U.S. Department of Education
Defendant Kenneth L. Marcus in his official capacity as Assistant Secretary for Civil Rights

Sunu Chandy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Benjamin Thomas Takemoto U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Ben Franklin Station Washington, DC 20044 (202) 532−4252 Fax: (202) 616−8460 Email: benjamin.takemoto@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Andrew Myers United States Department of Justice Civil Division, Federal Programs Branch 1100 L St. NW Washington, DC 20005 (202) 305−8648 Fax: (202) 616−8470 Email: steven.a.myers@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Thomas Takemoto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Andrew Myers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Thomas Takemoto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Andrew Myers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Thomas Takemoto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Andrew Myers (See above for address)

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 6 of 19

Amicus
The Women's and Children's Advocacy Project, Equal Means Equal, National Coalition Against Violent Athletes, Faculty Against Rape, Allies Reaching for Equality, Women Matter, We Are Woman TERMINATED: 03/29/2019

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey L. Fillerup Rincon Law LLP 200 California Street, Suite 400 San Francisco, CA 94111 (415) 840−9493 Fax: (415) 680−1712 Email: jfillerup@rinconlawllp.com LEAD ATTORNEY
Wendy Murphy New England Law|Boston 154 Stuart Street Boston, MA 02116 (617) 422−7410 PRO HAC VICE

Date Filed 01/25/2018
01/25/2018 01/25/2018 01/25/2018 01/25/2018 01/25/2018 01/25/2018 01/25/2018
01/26/2018
01/26/2018

# Docket Text
1 COMPLAINT FOR INJUNCTIVE RELIEF against Elisabeth DeVos, Candice Jackson, United States Department of Education (Filing fee $ 400, receipt number 0971−12054117). Filed by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Attachments: # 1 Civil Cover Sheet)(Reisch, Jennifer) (Filed on 1/25/2018) Modified on 1/29/2018 (slhS, COURT STAFF). (Entered: 01/25/2018)
2 Proposed Summons. (Reisch, Jennifer) (Filed on 1/25/2018) (Entered: 01/25/2018)
3 Proposed Summons. (Reisch, Jennifer) (Filed on 1/25/2018) (Entered: 01/25/2018)
4 Proposed Summons. (Reisch, Jennifer) (Filed on 1/25/2018) (Entered: 01/25/2018)
5 Proposed Summons. (Reisch, Jennifer) (Filed on 1/25/2018) (Entered: 01/25/2018)
6 Proposed Summons. (Reisch, Jennifer) (Filed on 1/25/2018) (Entered: 01/25/2018)
7 Certificate of Interested Entities by Equal Rights Advocates, SurvJustice, Inc., Victim Rights Law Center (Reisch, Jennifer) (Filed on 1/25/2018) Modified on 1/29/2018 (slhS, COURT STAFF). (Entered: 01/25/2018)
8 Case assigned to Magistrate Judge Jacqueline Scott Corley.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 2/8/2018. (srnS, COURT STAFF) (Filed on 1/25/2018) (Entered: 01/25/2018)
9 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12058208.) filed by Equal Rights Advocates, SurvJustice, Victim Rights Law Center. (Attachments: # 1 Certificate/Proof of Service Certificate of Good Standing)(Abrokwa, Alice) (Filed on 1/26/2018) (Entered: 01/26/2018)
10 ORDER by Magistrate Judge Jacqueline Scott Corley granting 9 Motion for Pro Hac Vice as to Alice Abrokwa. (ahm, COURT STAFF) (Filed on 1/26/2018) (Entered: 01/26/2018)

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 7 of 19

01/29/2018 01/29/2018 02/01/2018 02/01/2018 02/01/2018 02/01/2018 02/08/2018 02/08/2018 02/08/2018 02/08/2018 02/08/2018 02/08/2018 02/21/2018 03/02/2018 03/02/2018 03/02/2018

11 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 4/19/2018. Initial Case Management Conference set for 4/26/2018 01:30 PM in San Francisco, Courtroom F, 15th Floor. (slhS, COURT STAFF) (Filed on 1/29/2018) (Entered: 01/29/2018)
12 Summons Issued as to Elisabeth DeVos, Candice Jackson, U.S. Department of Education, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Jackson, # 2 Dept of Education, # 3 Attorney General, # 4 U.S. Attorney)(slhS, COURT STAFF) (Filed on 1/29/2018) (Entered: 01/29/2018)
13 MOTION & [PROPOSED] ORDER for leave to appear in Pro Hac Vice by Javier M. Guzman ( Filing fee $ 310, receipt number 0971−12077378.) filed by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Welch, Leecia) (Filed on 2/1/2018) Modified on 2/2/2018 (aaaS, COURT STAFF). (Entered: 02/01/2018)
14 MOTION & [PROPOSED] ORDER for leave to appear in Pro Hac Vice by Karianne M. Jones ( Filing fee $ 310, receipt number 0971−12077445.) filed by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Welch, Leecia) (Filed on 2/1/2018) Modified on 2/2/2018 (aaaS, COURT STAFF). (Entered: 02/01/2018)
15 MOTION & [PROPOSED] ORDER for leave to appear in Pro Hac Vice by Skye L. Perryman ( Filing fee $ 310, receipt number 0971−12077476.) filed by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Welch, Leecia) (Filed on 2/1/2018) Modified on 2/2/2018 (aaaS, COURT STAFF). (Entered: 02/01/2018)
16 MOTION & [PROPOSED] ORDER for leave to appear in Pro Hac Vice by Robin F. Thurston ( Filing fee $ 310, receipt number 0971−12077517.) filed by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Welch, Leecia) (Filed on 2/1/2018) Modified on 2/2/2018 (aaaS, COURT STAFF). (Entered: 02/01/2018)
17 CERTIFICATE OF SERVICE by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center (Attachments: # 1 Declaration Benjamin J. Link)(Abrokwa, Alice) (Filed on 2/8/2018) (Entered: 02/08/2018)
18 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center.. (Abrokwa, Alice) (Filed on 2/8/2018) (Entered: 02/08/2018)
19 ORDER by Magistrate Judge Jacqueline Scott Corley granting 13 Motion for Pro Hac Vice as to Javier M. Guzman. (ahm, COURT STAFF) (Filed on 2/8/2018) (Entered: 02/08/2018)
20 ORDER by Magistrate Judge Jacqueline Scott Corley granting 14 Motion for Pro Hac Vice as to Karianne M. Jones. (ahm, COURT STAFF) (Filed on 2/8/2018) (Entered: 02/08/2018)
21 ORDER by Magistrate Judge Jacqueline Scott Corley granting 15 Motion for Pro Hac Vice as to Skye L. Perryman. (ahm, COURT STAFF) (Filed on 2/8/2018) (Entered: 02/08/2018)
22 ORDER by Magistrate Judge Jacqueline Scott Corley granting 16 Motion for Pro Hac Vice as to Robin F. Thurston. (ahm, COURT STAFF) (Filed on 2/8/2018) (Entered: 02/08/2018)
23 AMENDED COMPLAINT against Elisabeth DeVos, Candice Jackson, United States Department of Education . Filed by SurvJustice Inc, Equal Rights Advocates, Victim Rights Law Center. (Abrokwa, Alice) (Filed on 2/21/2018) Modified on 2/22/2018 (slhS, COURT STAFF). (Entered: 02/21/2018)
24 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12153991.) filed by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Brodsky, Alexandra) (Filed on 3/2/2018) (Entered: 03/02/2018)
25 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12154093.) filed by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Chandy, Sunu) (Filed on 3/2/2018) (Entered: 03/02/2018)
26 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12154108.) filed by Equal Rights Advocates, SurvJustice Inc, Victim Rights

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 8 of 19

03/02/2018 03/05/2018 03/05/2018 03/05/2018 03/05/2018 03/12/2018 03/28/2018 03/28/2018 03/28/2018
03/29/2018 03/29/2018
04/02/2018 04/25/2018 05/02/2018
05/10/2018

Law Center. (Chaudhry, Neena) (Filed on 3/2/2018) (Entered: 03/02/2018)
27 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12154140.) filed by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Martin, Emily) (Filed on 3/2/2018) (Entered: 03/02/2018)
28 ORDER by Magistrate Judge Jacqueline Scott Corley granting 24 Motion for Pro Hac Vice as to Alexandra Brodsky. (ahm, COURT STAFF) (Filed on 3/5/2018) (Entered: 03/05/2018)
29 ORDER by Magistrate Judge Jacqueline Scott Corley granting 25 Motion for Pro Hac Vice as to Sunu Chandy. (ahm, COURT STAFF) (Filed on 3/5/2018) (Entered: 03/05/2018)
30 ORDER by Magistrate Judge Jacqueline Scott Colrey granting 26 Motion for Pro Hac Vice as to Neena Chaudhry. (ahm, COURT STAFF) (Filed on 3/5/2018) (Entered: 03/05/2018)
31 ORDER by Magistrate Judge Jacqueline Scott Corley granting 27 Motion for Pro Hac Vice Emily Martin. (ahm, COURT STAFF) (Filed on 3/5/2018) (Entered: 03/05/2018)
32 CERTIFICATE OF SERVICE by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center (Attachments: # 1 Declaration)(Thurston, Robin) (Filed on 3/12/2018) (Entered: 03/12/2018)
33 NOTICE of Appearance by Benjamin Thomas Takemoto (Takemoto, Benjamin) (Filed on 3/28/2018) (Entered: 03/28/2018)
34 STIPULATION WITH PROPOSED ORDER filed by Elisabeth DeVos, Candice Jackson, U.S. Department of Education. (Attachments: # 1 Takemoto Declaration)(Takemoto, Benjamin) (Filed on 3/28/2018) (Entered: 03/28/2018)
35 CLERK'S NOTICE Re: Consent or Declination: Defendants shall file a consent or declination to proceed before a magistrate judge by 4/11/2018. Note that any party is free to withhold consent to proceed before a magistrate judge without adverse substantive consequences. The forms are available at: http://cand.uscourts.gov/civilforms. (ahm, COURT STAFF) (Filed on 3/28/2018) (Entered: 03/28/2018)
36 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Elisabeth DeVos, Candice Jackson, U.S. Department of Education.. (Takemoto, Benjamin) (Filed on 3/29/2018) (Entered: 03/29/2018)
37 ORDER by Magistrate Judge Jacqueline Scott Corley granting 34 Stipulation Changing Time. Joint Case Management Statement due by 6/21/2018. Initial Case Management Conference reset for 6/28/2018 at 1:30 PM in San Francisco, Courtroom F, 15th Floor. (ahm, COURT STAFF) (Filed on 3/29/2018) (Entered: 03/29/2018)
38 NOTICE of Appearance by Steven Andrew Myers (Myers, Steven) (Filed on 4/2/2018) (Entered: 04/02/2018)
39 NOTICE of Change In Counsel by Robin Frances Thurston (Thurston, Robin) (Filed on 4/25/2018) (Entered: 04/25/2018)
40 MOTION to Dismiss , MOTION to Dismiss for Lack of Jurisdiction filed by Elisabeth DeVos, Candice Jackson, U.S. Department of Education. Motion Hearing set for 6/28/2018 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 6/1/2018. Replies due by 6/8/2018. (Myers, Steven) (Filed on 5/2/2018) (Entered: 05/02/2018)
41 CLERK'S NOTICE REGARDING TIME OF CASE MANAGEMENT CONFERENCE. Please take notice that the case management conference currently scheduled for June 28, 2018 at 1:30 p.m. shall commence at 9:00 a.m. before Magistrate Judge Jacqueline Scott Corley, in Courtroom F, 15th Floor, Federal Building, 450 Golden Gate Avenue in San Francisco. A joint case management statement shall be filed seven days prior to the conference.

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 9 of 19

05/22/2018 05/23/2018 05/23/2018 05/31/2018
05/31/2018 06/08/2018 06/14/2018 06/14/2018
06/27/2018 06/28/2018 06/28/2018

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(ahm, COURT STAFF) (Filed on 5/10/2018) (Entered: 05/10/2018)
42 STIPULATION WITH PROPOSED ORDER filed by Elisabeth DeVos, Candice Jackson, U.S. Department of Education. (Attachments: # 1 Declaration Declaration of Steven A. Myers)(Myers, Steven) (Filed on 5/22/2018) (Entered: 05/22/2018)
43 ORDER by Magistrate Judge Jacqueline Scott Corley granting 42 Stipulation Rescheduling Briefing Schedule and Case Management Conference. Joint Case Management Statement due by 7/12/2018. Initial Case Management Conference reset for 7/19/2018 at 9:00 AM in San Francisco, Courtroom F, 15th Floor. (ahm, COURT STAFF) (Filed on 5/23/2018) (Entered: 05/23/2018)
Set/Reset Deadlines as to 40 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction . Responses due by 6/8/2018. Replies due by 6/27/2018. Motion Hearing reset for 7/19/2018 at 9:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 5/23/2018) (Entered: 05/23/2018)
44 CLERK'S NOTICE REGARDING TIME OF HEARINGS. To all parties and counsel of record: Please take notice that all hearings currently scheduled for July 19, 2018 at 9:00 a.m. shall commence at 2:00 p.m., before Magistrate Judge Jacqueline Scott Corley, in Courtroom F, 15th Floor, Federal Building, 450 Golden Gate Avenue in San Francisco.
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(ahm, COURT STAFF) (Filed on 5/31/2018) Modified on 5/31/2018 (ahm, COURT STAFF). (Entered: 05/31/2018)
Set/Reset Deadlines as to 40 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction . Motion Hearing reset for 7/19/2018 at 2:00 PM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 5/31/2018) (Entered: 05/31/2018)
45 OPPOSITION/RESPONSE (re 40 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction ) filed byEqual Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Thurston, Robin) (Filed on 6/8/2018) (Entered: 06/08/2018)
46 MOTION to File Amicus Curiae Brief filed by The Women's and Children's Advocacy Project, Equal Means Equal, National Coalition Against Violent Athletes, Faculty Against Rape, Allies Reaching for Equality, Women Matter, We Are Woman. Motion Hearing set for 7/19/2018 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 6/28/2018. Replies due by 7/5/2018. (Fillerup, Jeffrey) (Filed on 6/14/2018) (Entered: 06/14/2018)
47 EXHIBITS re 46 MOTION to File Amicus Curiae Brief (Amicus Curiae Brief on Behalf of the Womens and Childrens Advocacy Project, Equal Means Equal, National Coalition Against Violent Athletes, Allies Reaching for Equality, Women Matter, and We Are Woman) filed byThe Women's and Children's Advocacy Project, Equal Means Equal, National Coalition Against Violent Athletes, Faculty Against Rape, Allies Reaching for Equality, Women Matter, We Are Woman. (Related document(s) 46 ) (Fillerup, Jeffrey) (Filed on 6/14/2018) (Entered: 06/14/2018)
48 REPLY MEMORANDUM in Support (re 40 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction) filed by Elisabeth DeVos, Candice Jackson, U.S. Department of Education. (Myers, Steven) (Filed on 6/27/2018) Modified on 6/29/2018 (slhS, COURT STAFF). (Entered: 06/27/2018)
49 Statement of Non−Opposition re 46 MOTION to File Amicus Curiae Brief filed by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Thurston, Robin) (Filed on 6/28/2018) Modified on 6/29/2018 (slhS, COURT STAFF). (Entered: 06/28/2018)
50 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Thurston, Robin) (Filed on 6/28/2018) (Entered: 06/28/2018)

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 10 of 19

06/28/2018 06/28/2018 06/28/2018 06/28/2018 06/28/2018 06/28/2018
06/28/2018 06/28/2018 06/29/2018

51 MOTION for leave to appear in Pro Hac Vice by Wendy Murphy, New England Law |Boston ( Filing fee $ 310, receipt number 0971−12472118.) filed by The Women's and Children's Advocacy Project, Equal Means Equal, National Coalition Against Violent Athletes, Faculty Against Rape, Allies Reaching for Equality, Women Matter, We Are Woman. (Fillerup, Jeffrey) (Filed on 6/28/2018) (Entered: 06/28/2018)
52 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Takemoto, Benjamin) (Filed on 6/28/2018) (Entered: 06/28/2018)
53 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Takemoto, Benjamin) (Filed on 6/28/2018) (Entered: 06/28/2018)
54 OPPOSITION/RESPONSE (re 46 MOTION to File Amicus Curiae Brief ) filed byElisabeth DeVos, Candice Jackson, U.S. Department of Education. (Takemoto, Benjamin) (Filed on 6/28/2018) (Entered: 06/28/2018)
55 ADR Clerk's Notice Setting ADR Phone Conference on Friday, July 13, 2018, at 11:30 AM Pacific time (2:30 PM Eastern time). Please note that you must be logged into an ECF account of counsel of record in order to view this document. (af, COURT STAFF) (Filed on 6/28/2018) (Entered: 06/28/2018)
56 CLERK'S NOTICE REGARDING TIME OF HEARINGS. To all parties and counsel of record: Please take notice that the pending motion hearings (Dkt. Nos. 40 & 46 ) and initial case management conference scheduled for July 19, 2018 shall commence at 9:00 a.m., before Magistrate Judge Jacqueline Scott Corley, in Courtroom F, 15th Floor, Federal Building, 450 Golden Gate Avenue in San Francisco. A joint case management statement shall be filed seven days prior to the case management conference.
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(ahm, COURT STAFF) (Filed on 6/28/2018) (Entered: 06/28/2018)
Set/Reset Hearing: Initial Case Management Conference set for 7/19/2018 at 09:00 AM in San Francisco, Courtroom F, 15th Floor. (ahm, COURT STAFF) (Filed on 6/28/2018) (Entered: 06/28/2018)
Set/Reset Deadlines as to 40 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction . Motion Hearing set for 7/19/2018 at 9:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 6/28/2018) (Entered: 06/28/2018)
57 ORDER by Magistrate Judge Jacqueline Scott Corley granting 46 Motion to File Amicus Curiae Brief.

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06/29/2018 07/02/2018 07/03/2018
07/12/2018

(Corley, Jacqueline) (Filed on 6/29/2018) (Entered: 06/29/2018)
58 ORDER by Magistrate Judge Jacqueline Scott Corley granting 51 Motion for Pro Hac Vice as to Wendy Murphy. (ahm, COURT STAFF) (Filed on 6/29/2018) (Entered: 06/29/2018)
59 Letter from Jeffrey L. Fillerup [Request for Permission for Telephonic Appearance by Wendy Murphy]. (Fillerup, Jeffrey) (Filed on 7/2/2018) (Entered: 07/02/2018)
60 ORDER granting 59 Request for Permission for Telephonic Appearance by Wendy Murphy. Counsel shall contact Court Call at 1−888−882−6878 to make the arrangements to appear by telephone. Signed by Magistrate Judge Jacqueline Scott Corley on 7/3/2018. (ahm, COURT STAFF) (Filed on 7/3/2018) (Entered: 07/03/2018)
61 CASE MANAGEMENT STATEMENT filed by Elisabeth DeVos, Candice Jackson, U.S. Department of Education. (Takemoto, Benjamin) (Filed on 7/12/2018) (Entered: 07/12/2018)

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 11 of 19

07/16/2018 07/16/2018 07/19/2018

62 ADR Remark: ADR Phone Conference held on 7/13/2018 by Howard Herman. (af, COURT STAFF) (Filed on 7/16/2018) (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 07/16/2018)
63 Letter from Plaintiffs Requesting Limited Telephonic Participation . (Thurston, Robin) (Filed on 7/16/2018) (Entered: 07/16/2018)
64 Minute Entry for proceedings held before Magistrate Judge Jacqueline Scott Corley: Motion Hearing held on 7/19/2018 re 40 MOTION to Dismiss for Lack of Jurisdiction filed by U.S. Department of Education, Candice Jackson, Elisabeth DeVos. Plaintiffs' 10−page supplemental briefing shall filed by 8/2/2018 and Defendants' 10−page response shall be filed by 8/30/2018. Upon the submission of the supplemental briefing, the Court will take the matter submission. (FTR Time: 9:02−10:39.)

Attorney for Plaintiffs: Robin Thurston. Attorneys for Defendants: Steven Myers; Benjamin Takemoto.

(This is a text−only entry generated by the court. There is no document associated with this entry.)

07/24/2018 07/25/2018 07/30/2018
08/02/2018 08/03/2018 08/30/2018 08/31/2018

(ahm, COURT STAFF) (Date Filed: 7/19/2018) Modified on 7/25/2018: Matter transcribed by Tara Bauer (ECHO Reporting). (rjdS, COURT STAFF). (Entered: 07/19/2018)
65 NOTICE of Change In Counsel by Alexandra Brodsky (Brodsky, Alexandra) (Filed on 7/24/2018) (Entered: 07/24/2018)
66 TRANSCRIPT ORDER for proceedings held on 07/19/2018 before Magistrate Judge Jacqueline Scott Corley by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center, for Court Reporter FTR − San Francisco. (Thurston, Robin) (Filed on 7/25/2018) (Entered: 07/25/2018)
67 Transcript of Proceedings of the official sound recording held on 07/19/18, before Judge Magistrate Judge Jacqueline Scott Corley. Court Reporter/Transcriber Echo Reporting, Inc., telephone number (858) 453−7590. Tape Number: FTR 9:02 − 10:39. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 66 Transcript Order, ) Redaction Request due 8/20/2018. Redacted Transcript Deadline set for 8/30/2018. Release of Transcript Restriction set for 10/29/2018. (Related documents(s) 66 ) (tgb, COURT STAFF) (Filed on 7/30/2018) (Entered: 07/30/2018)
68 OPPOSITION/RESPONSE (re 40 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction ) Supplemental filing filed byEqual Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Thurston, Robin) (Filed on 8/2/2018) (Entered: 08/02/2018)
69 TRANSCRIPT ORDER for proceedings held on 07/19/2018 before Magistrate Judge Jacqueline Scott Corley by Elisabeth DeVos, Candice Jackson, U.S. Department of Education, for Court Reporter FTR − San Francisco. (Takemoto, Benjamin) (Filed on 8/3/2018) (Entered: 08/03/2018)
70 Supplemental Memorandum in Support (re 40 MOTION to Dismiss) filed by Elisabeth DeVos, Candice Jackson, U.S. Department of Education. (Myers, Steven) (Filed on 8/30/2018) Modified on 9/5/2018 (slhS, COURT STAFF). (Entered: 08/30/2018)
71 MOTION to Intervene as Plaintiffs; Memorandum of Points and Authorities, and Proposed Complaint in Intervention filed by The Women's and Children's Advocacy Project, Equal Means Equal, National Coalition Against Violent Athletes, Faculty Against Rape, Allies Reaching for Equality, Women Matter, We Are Woman. Motion Hearing set for 10/18/2018 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 9/14/2018. Replies due by 9/21/2018. (Fillerup, Jeffrey) (Filed on 8/31/2018) Modified on 9/5/2018 (slhS,

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 12 of 19

08/31/2018
09/07/2018
09/07/2018 09/14/2018 09/14/2018 09/21/2018 09/25/2018 09/28/2018 10/01/2018
10/01/2018 10/01/2018

COURT STAFF). (Entered: 08/31/2018)
72 Supplemental Brief (Supplemental Amicus Curiae Brief on Behalf of The Womens and Childrens Advocacy Project, Equal Means Equal, National Coalition Against Violent Athletes, Allies Reaching for Equality, Women Matter, We Are Woman, and Safe Campuses, LLC) filed by The Women's and Children's Advocacy Project, Equal Means Equal, National Coalition Against Violent Athletes, Faculty Against Rape, Allies Reaching for Equality, Women Matter, We Are Woman. (Fillerup, Jeffrey) (Filed on 8/31/2018) (Entered: 08/31/2018)
73 CLERK'S NOTICE ADVANCNG MOTION HEARING. To all parties and counsel of record: Please take notice that due to the Court's unavailability, the hearing on the Motion to Intervene (Dkt. No. 71 ) currently scheduled for October 18, 2018 is advanced to October 17, 2018 at 9:00 a.m., before Magistrate Judge Jacqueline Scott Corley, in Courtroom F, 15th Floor, Federal Building, 450 Golden Gate Avenue in San Francisco. Pursuant to Civil L.R. 7−7(d), the briefing schedule shall remain the same.
(This is a text only docket entry, there is no document associated with this notice.)
(ahm, COURT STAFF) (Filed on 9/7/2018) (Entered: 09/07/2018)
Set/Reset Deadlines as to 71 MOTION to Intervene as Plaintiffs. Motion Hearing reset for 10/17/2018 at 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 9/7/2018) (Entered: 09/07/2018)
74 OPPOSITION/RESPONSE (re 71 MOTION to Intervene as Plaintiffs ) filed byEqual Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Thurston, Robin) (Filed on 9/14/2018) (Entered: 09/14/2018)
75 OPPOSITION/RESPONSE (re 71 MOTION to Intervene as Plaintiffs ) filed by Elisabeth DeVos, Candice Jackson, U.S. Department of Education. (Attachments: # 1 Declaration of Steven A. Myers)(Myers, Steven) (Filed on 9/14/2018) (Entered: 09/14/2018)
76 REPLY to Opposition (re 71 MOTION to Intervene as Plaintiffs ) filed by The Women's and Children's Advocacy Project, Equal Means Equal, National Coalition Against Violent Athletes, Faculty Against Rape, Allies Reaching for Equality, Women Matter, We Are Woman. (Fillerup, Jeffrey) (Filed on 9/21/2018) Modified on 9/25/2018 (slhS, COURT STAFF). (Entered: 09/21/2018)
77 Statement of New Ruling (L.R. 7.3(d)(2)) by The Women's and Children's Advocacy Project, Equal Means Equal, National Coalition Against Violent Athletes, Faculty Against Rape, Allies Reaching for Equality, Women Matter, We Are Woman. (Fillerup, Jeffrey) (Filed on 9/25/2018) (Entered: 09/25/2018)
78 ADMINISTRATIVE MOTION Leave to File Surreply in Opposition to Motion to Intervene re 71 MOTION to Intervene as Plaintiffs filed by Elisabeth DeVos, Candice Jackson, U.S. Department of Education. Responses due by 10/2/2018. (Attachments: # 1 Declaration of Steven A. Myers, # 2 Exhibit Proposed Surreply, # 3 Exhibit Proposed Declaration of Steven A. Myers)(Myers, Steven) (Filed on 9/28/2018) (Entered: 09/28/2018)
79 OPPOSITION/RESPONSE (re 78 ADMINISTRATIVE MOTION Leave to file surreply in opposition to motion to intervene re 71 MOTION to Intervene as Plaintiffs ) (Intervention Movants' Opposition to Defendants' Administrative Motion for Leave to File Surreply in Opposition to Motion to Intervene) filed byThe Women's and Children's Advocacy Project, Equal Means Equal, National Coalition Against Violent Athletes, Faculty Against Rape, Allies Reaching for Equality, Women Matter, We Are Woman. (Fillerup, Jeffrey) (Filed on 10/1/2018) (Entered: 10/01/2018)
80 NOTICE of Change of Address by Benjamin Thomas Takemoto (Takemoto, Benjamin) (Filed on 10/1/2018) (Entered: 10/01/2018)
81 Order, signed 10/1/18, by Magistrate Judge Jacqueline Scott Corley granting 40 Motion to Dismiss; granting 40 Motion to Dismiss for Lack of Jurisdiction.( Amended Complaint, if any, due by 11/1/2018.).(klhS, COURT STAFF) (Filed on

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 13 of 19

10/04/2018
10/05/2018 10/11/2018 10/11/2018 10/31/2018 11/06/2018 11/08/2018 11/20/2018
12/04/2018 12/04/2018 12/10/2018
12/13/2018 12/14/2018

10/1/2018) (Entered: 10/01/2018)
82 MOTION to Withdraw 71 MOTION to Intervene as Plaintiffs filed by The Women's and Children's Advocacy Project, Equal Means Equal, National Coalition Against Violent Athletes, Faculty Against Rape, Allies Reaching for Equality, Women Matter, We Are Woman. Motion Hearing set for 10/17/2018 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 10/18/2018. Replies due by 10/25/2018. (Fillerup, Jeffrey) (Filed on 10/4/2018) (Entered: 10/04/2018)
83 RESPONSE to Request to Withdraw (ECF 82) − statement of non−opposition by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Thurston, Robin) (Filed on 10/5/2018) (Entered: 10/05/2018)
84 Response re 82 MOTION to Withdraw byElisabeth DeVos, Candice Jackson, U.S. Department of Education. (Takemoto, Benjamin) (Filed on 10/11/2018) (Entered: 10/11/2018)
85 Remark: The motion to intervene (Dkt. No. 71 is terminated as it was withdrawn by the movant. (ahm, COURT STAFF) (Filed on 10/11/2018) (Entered: 10/11/2018)
86 AMENDED COMPLAINT against Elisabeth DeVos, Candice Jackson, U.S. Department of Education. Filed bySurvJustice Inc, Equal Rights Advocates, Victim Rights Law Center. (Thurston, Robin) (Filed on 10/31/2018) (Entered: 10/31/2018)
87 STIPULATION WITH PROPOSED ORDER re: briefing schedule for Defendants' motion to dismiss second amended complaint filed by Elisabeth DeVos, Candice Jackson, U.S. Department of Education. (Attachments: # 1 Declaration of Steven A. Myers)(Myers, Steven) (Filed on 11/6/2018) (Entered: 11/06/2018)
88 ORDER by Magistrate Judge Jacqueline Scott Corley granting 87 Stipulation re: briefing schedule for Defendants' motion to dismiss second amended complaint. (ahm, COURT STAFF) (Filed on 11/8/2018) (Entered: 11/08/2018)
89 MOTION for Leave to Intervene ; Memorandum of Points and Authorities, and Proposed Complaint in Intervention filed by The Women's and Children's Advocacy Project, Equal Means Equal, National Coalition Against Violent Athletes, Faculty Against Rape, Allies Reaching for Equality, Women Matter, We Are Woman. Motion Hearing set for 2/14/2019 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 12/4/2018. Replies due by 12/11/2018. (Fillerup, Jeffrey) (Filed on 11/20/2018) Modified on 11/21/2018 (slhS, COURT STAFF). (Entered: 11/20/2018)
90 OPPOSITION/RESPONSE (re 89 MOTION for Leave to Intervene ) filed byElisabeth DeVos, Candice Jackson, U.S. Department of Education. (Attachments: # 1 Declaration of Steven A. Myers, # 2 Exhibit to Myers Declaration)(Takemoto, Benjamin) (Filed on 12/4/2018) (Entered: 12/04/2018)
91 OPPOSITION/RESPONSE (re 89 MOTION for Leave to Intervene ) filed byEqual Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Thurston, Robin) (Filed on 12/4/2018) (Entered: 12/04/2018)
92 REPLY to Opposition (re 89 MOTION for Leave to Intervene) filed by The Women's and Children's Advocacy Project, Equal Means Equal, National Coalition Against Violent Athletes, Faculty Against Rape, Allies Reaching for Equality, Women Matter, We Are Woman. (Fillerup, Jeffrey) (Filed on 12/10/2018) Modified on 12/12/2018 (slhS, COURT STAFF). (Entered: 12/10/2018)
93 NOTICE by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center of filing redline of amended pleading (Attachments: # 1 Amended Complaint Redline)(Thurston, Robin) (Filed on 12/13/2018) (Entered: 12/13/2018)
94 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim filed by Elisabeth DeVos, Candice Jackson, U.S. Department of Education. Motion Hearing set for 2/14/2018 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 1/11/2018. Replies due by 2/1/2018. (Myers, Steven) (Filed on 12/14/2018) (Entered: 12/14/2018)

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 14 of 19

12/14/2018
01/11/2019 01/15/2019 01/16/2019 01/28/2019 01/29/2019 01/29/2019
02/01/2019 02/08/2019 02/08/2019 02/11/2019 02/15/2019 02/19/2019 02/26/2019 03/01/2019 03/01/2019

95 Amended MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim filed by Elisabeth DeVos, Candice Jackson, U.S. Department of Education. Motion Hearing set for 2/14/2019 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 1/11/2019. Replies due by 2/1/2019. (Myers, Steven) (Filed on 12/14/2018) (Entered: 12/14/2018)
96 OPPOSITION/RESPONSE (re 95 Amended MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim ) filed byEqual Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Thurston, Robin) (Filed on 1/11/2019) (Entered: 01/11/2019)
97 ADMINISTRATIVE MOTION Stay of Reply Deadline and February 14, 2019 Hearing in Light of DOJ Lapse of Appropriations filed by Elisabeth DeVos, Candice Jackson, U.S. Department of Education. Responses due by 1/22/2019. (Takemoto, Benjamin) (Filed on 1/15/2019) (Entered: 01/15/2019)
98 ORDER by Magistrate Judge Jacqueline Scott Corley granting 97 Administrative Motion to Stay Case. (ahm, COURT STAFF) (Filed on 1/16/2019) (Entered: 01/16/2019)
99 STIPULATION WITH PROPOSED ORDER re: hearing dates for pending motions filed by Elisabeth DeVos, Candice Jackson, U.S. Department of Education. (Attachments: # 1 Declaration of Steven A. Myers)(Myers, Steven) (Filed on 1/28/2019) (Entered: 01/28/2019)
100 ORDER by Magistrate Judge Jacqueline Scott Corley granting 99 Stipulation re: hearing dates for pending motions. (ahm, COURT STAFF) (Filed on 1/29/2019) (Entered: 01/29/2019)
Set/Reset Deadlines as to 95 Amended MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim, 89 MOTION for Leave to Intervene. Motion Hearing reset for 3/7/2019 at 9:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 1/29/2019) (Entered: 01/29/2019)
101 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13057192.) filed by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Galanter, Seth) (Filed on 2/1/2019) (Entered: 02/01/2019)
102 REPLY in Support (re 95 Amended MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim ) filed by Elisabeth DeVos, Candice Jackson, U.S. Department of Education. (Myers, Steven) (Filed on 2/8/2019) (Entered: 02/08/2019)
103 MOTION for Leave to File Motion for Reconsideration filed by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Abrokwa, Alice) (Filed on 2/8/2019) (Entered: 02/08/2019)
104 ORDER RE: PLAINTIFFS' MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION. Signed by Magistrate Judge Jacqueline Scott Corley on 2/11/2019. (ahmS, COURT STAFF) (Filed on 2/11/2019) (Entered: 02/11/2019)
105 STIPULATION WITH PROPOSED ORDER re 104 Order on Motion for Leave to File filed by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Thurston, Robin) (Filed on 2/15/2019) (Entered: 02/15/2019)
106 ORDER as modified by Magistrate Judge Jacqueline Scott Corley granting 105 Stipulation on briefing schedule on Plaintiffs' Motion for Leave to File a Motion for Reconsideration (ahm, COURT STAFF) (Filed on 2/19/2019) (Entered: 02/19/2019)
107 MOTION for Reconsideration re 81 Order on Motion to Dismiss,, Order on Motion to Dismiss/Lack of Jurisdiction filed by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Abrokwa, Alice) (Filed on 2/26/2019) (Entered: 02/26/2019)
108 Letter from Plaintiffs Requesting Limited Telephonic Participation . (Abrokwa, Alice) (Filed on 3/1/2019) (Entered: 03/01/2019)
109 MOTION to Appear by Telephone filed by The Women's and Children's Advocacy Project, Equal Means Equal, National Coalition Against Violent Athletes, Faculty

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 15 of 19

03/04/2019

Against Rape, Allies Reaching for Equality, Women Matter, We Are Woman. (Fillerup, Jeffrey) (Filed on 3/1/2019) (Entered: 03/01/2019)
110 ORDER by Magistrate Judge Jacqueline Scott Corley granting 109 Motion to Appear by Telephone. Counsel shall contact Court Call at 1−888−882−6878 to make the arrangements.

(This is a text−only entry generated by the court. There is no document associated with this entry.)

03/07/2019
03/07/2019 03/07/2019

(ahm, COURT STAFF) (Filed on 3/4/2019) (Entered: 03/04/2019)
Set/Reset Deadlines as to 107 MOTION for Reconsideration re 81 Order on Motion to Dismiss,, Order on Motion to Dismiss/Lack of Jurisdiction. Motion Hearing set for 4/4/2019 at 2:00 PM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 3/7/2019) (Entered: 03/07/2019)
111 ORDER by Magistrate Judge Jacqueline Scott Corley granting 101 Motion for Pro Hac Vice. as to Seth Galanter(ahm, COURT STAFF) (Filed on 3/7/2019) (Entered: 03/07/2019)
112 Minute Entry for proceedings held before Magistrate Judge Jacqueline Scott Corley: Motion Hearing held on 3/7/2019 re 89 MOTION for Leave to Intervene filed by The Women's and Children's Advocacy Project, Equal Means Equal, National Coalition Against Violent Athletes, Faculty Against Rape, Allies Reaching for Equality, Women Matter, We Are Woman, and 95 Amended MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim filed by U.S. Department of Education, Candice Jackson, & Elisabeth DeVos. The motions were argued, submitted, and taken under submission. (Court Reporter: Belle Ball.)(Time 1:13)

Attorney for Plaintiffs: Robin Thurston. Attorneys for Defendants: Steven Myers; Benjamin Takemoto. Attorney for Proposed Intervenors: Jeffrey Fillerup.

(This is a text−only entry generated by the court. There is no document associated with this entry.)

03/07/2019 03/12/2019 03/12/2019 03/25/2019 03/28/2019 03/28/2019

(ahm, COURT STAFF) (Date Filed: 3/7/2019) (Entered: 03/07/2019)
113 TRANSCRIPT ORDER for proceedings held on 03/07/2019 before Magistrate Judge Jacqueline Scott Corley by Elisabeth DeVos, Candice Jackson, U.S. Department of Education, for Court Reporter Belle Ball. (Takemoto, Benjamin) (Filed on 3/7/2019) (Entered: 03/07/2019)
114 TRANSCRIPT ORDER for proceedings held on 3/7/19 before Magistrate Judge Jacqueline Scott Corley by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center, for Court Reporter Belle Ball. (Thurston, Robin) (Filed on 3/12/2019) (Entered: 03/12/2019)
115 OPPOSITION/RESPONSE (re 107 MOTION for Reconsideration re 81 Order on Motion to Dismiss,, Order on Motion to Dismiss/Lack of Jurisdiction filed by Elisabeth DeVos, Candice Jackson, U.S. Department of Education. (Takemoto, Benjamin) (Filed on 3/12/2019) (Entered: 03/12/2019)
116 REPLY in Support (re 107 MOTION for Reconsideration re 81 Order on Motion to Dismiss, Order on Motion to Dismiss/Lack of Jurisdiction filed by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Abrokwa, Alice) (Filed on 3/25/2019) (Entered: 03/25/2019)
117 Letter from Plaintiffs Request for limited apearance by telephone. (Thurston, Robin) (Filed on 3/28/2019) (Entered: 03/28/2019)
118 ORDER granting 117 Request for limited appearance by telephone filed by SurvJustice Inc, Victim Rights Law Center, & Equal Rights Advocates. Signed by Magistrate Judge Jacqueline Scott Corley on 3/28/2019. (ahm, COURT STAFF)

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 16 of 19

03/28/2019
03/29/2019 03/29/2019
03/29/2019 04/18/2019 04/25/2019 04/29/2019 04/29/2019
04/30/2019 05/02/2019
05/02/2019 05/02/2019

(Filed on 3/28/2019) (Entered: 03/28/2019)
119 Transcript of Proceedings held on March 7, 2019, before Judge Jacqueline Scott Corley. Court Reporter/Transcriber Belle Ball, CSR, CRR, RDR, telephone number (415)373−2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 114 Transcript Order, 113 Transcript Order ) Release of Transcript Restriction set for 6/26/2019. (Related documents(s) 114 , 113 ) (ballbb15S, COURT STAFF) (Filed on 3/28/2019) (Entered: 03/28/2019)
120 ORDER by Magistrate Judge Jacqueline Scott Corley granting in part and denying in part 95 Motion to Dismiss for Lack of Jurisdiction. (ahm, COURT STAFF) (Filed on 3/29/2019) (Entered: 03/29/2019)
121 ORDER by Magistrate Judge Jacqueline Scott Corley granting 107 Motion for Reconsideration re 81 Order on Motion to Dismiss and Motion to Dismiss for Lack of Jurisdiction. Joint Case Management Statement due by 4/25/2019. Further Case Management Conference set for 5/2/2019 at 1:30 PM in San Francisco, Courtroom F, 15th Floor. (ahm, COURT STAFF) (Filed on 3/29/2019) (Entered: 03/29/2019)
122 ORDER by Magistrate Judge Jacqueline Scott Corley denying 89 Motion to Intervene. (ahm, COURT STAFF) (Filed on 3/29/2019) (Entered: 03/29/2019)
123 THIRD AMENDED COMPLAINT against Elisabeth DeVos, Kenneth L. Marcus, U.S. Department of Education. Filed by SurvJustice Inc, Equal Rights Advocates, Victim Rights Law Center. (Attachments: # 1 Exhibit Redline to prior complaint)(Thurston, Robin) (Filed on 4/18/2019) Modified on 4/22/2019 (slhS, COURT STAFF). (Entered: 04/18/2019)
124 CASE MANAGEMENT STATEMENT filed by Elisabeth DeVos, Candice Jackson, Kenneth L. Marcus, U.S. Department of Education. (Takemoto, Benjamin) (Filed on 4/25/2019) (Entered: 04/25/2019)
125 Letter from Plaintiffs Request for limited appearance by telephone. (Thurston, Robin) (Filed on 4/29/2019) (Entered: 04/29/2019)
126 ORDER granting Request to Appear by Telephone 125 filed by SurvJustice Inc, Victim Rights Law Center, Equal Rights Advocates. Signed by Judge Jacqueline Scott Corley on April 29, 2019. Plaintiffs shall make arrangements to appear by telephone through court call. (This is a text−only entry generated by the court. There is no document associated with this entry.) (jsclc1S, COURT STAFF) (Filed on 4/29/2019) (Entered: 04/29/2019)
127 NOTICE of Change of Address by Benjamin Thomas Takemoto (Takemoto, Benjamin) (Filed on 4/30/2019) (Entered: 04/30/2019)
128 SCHEDULING ORDER RE MOTIONS FOR SUMMARY JUDGMENT: Motion Hearing set for 10/17/2019 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Motion for Summary Judgment due by 7/25/2019. Defendant's Opposition and Cross−Motion due 8/22/19. Reply and Opposition to Cross−motion due 9/12/19. Defendant's reply due 9/26/19.. Signed by Judge Jacqueline Scott Corley on 5/2/19. (klhS, COURT STAFF) (Filed on 5/2/2019) (Entered: 05/02/2019)
Set Deadlines/Hearings: Cross Motions due by 8/22/2019. Responses/Opposition (Dft) due by 8/22/2019. Replies & Opposition to Cross−Motion due by 9/12/2019. Reply (Dft): due 9/26/19 (klhS, COURT STAFF) (Filed on 5/2/2019) (Entered: 05/02/2019)
129 Minute Entry for proceedings held before Magistrate Judge Jacqueline Scott Corley: Further Case Management Conference held on 5/2/2019.FTR Time: 1:31 − 1:38. Plaintiff Attorney: Karianne Jones. Defendant Attorney: Benjamin Takemoto and Robin Thurston. Attachment: Civil Minutes. (tlS, COURT STAFF) (Date Filed: 5/2/2019) Modified on 5/6/2019: Matter transcribed by Leo

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 17 of 19

05/06/2019 05/07/2019 05/10/2019
06/03/2019 06/03/2019 07/24/2019 07/25/2019 07/29/2019 08/08/2019 08/08/2019 08/08/2019 08/29/2019

Mankiewicz. (rjdS, COURT STAFF). (Entered: 05/03/2019)
130 TRANSCRIPT ORDER for proceedings held on 5/2/2019 before Magistrate Judge Jacqueline Scott Corley by Elisabeth DeVos, Candice Jackson, Kenneth L. Marcus, U.S. Department of Education, for Court Reporter FTR − San Francisco. (Myers, Steven) (Filed on 5/6/2019) (Entered: 05/06/2019)
131 PDF with attached Audio File. Court Date & Time [ 5/2/2019 1:31:17 PM ]. File Size [ 2800 KB ]. Run Time [ 00:05:50 ]. (courtspeak). (Entered: 05/07/2019)
132 Transcript of Proceedings held on 05/02/2019, before Magistrate Judge Jacqueline Scott Corley. Court Reporter/Transcriber Leo T. Mankiewicz, CSR, RMR, CRR, telephone number (415) 722−7045; email: leomank@gmail.com. FTR 1:31 p.m. − 1:38 p.m. = 7 minutes. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 130 Transcript Order, ) Redaction Request due 5/31/2019. Redacted Transcript Deadline set for 6/10/2019. Release of Transcript Restriction set for 8/8/2019. (Related documents(s) 130 ) (Mankiewicz, Leo) (Filed on 5/10/2019) (Entered: 05/10/2019)
133 ANSWER to 123 Third Amended Complaint by Elisabeth DeVos, Candice Jackson, Kenneth L. Marcus, U.S. Department of Education. (Myers, Steven) (Filed on 6/3/2019) Modified on 6/4/2019 (slhS, COURT STAFF). (Entered: 06/03/2019)
134 NOTICE by Elisabeth DeVos, Candice Jackson, Kenneth L. Marcus, U.S. Department of Education of filing the A.R. (Attachments: # 1 Certification of the A.R., # 2 A.R. Part I, # 3 A.R. Part II, # 4 A.R. Part III, # 5 A.R. Part IV, # 6 A.R. Part V, # 7 A.R. Part VI, # 8 A.R. Part VII, # 9 A.R. Part VIII, # 10 A.R. Part IX, # 11 A.R. Part X, # 12 A.R. Part XI)(Takemoto, Benjamin) (Filed on 6/3/2019) (Entered: 06/03/2019)
135 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13549844.) filed by SurvJustice Inc. (Attachments: # 1 Exhibit Certificate of Good Standing)(Reisch, Jennifer) (Filed on 7/24/2019) (Entered: 07/24/2019)
136 MOTION for Summary Judgment filed by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center. Motion Hearing set for 10/17/2019 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 8/22/2019. Replies due by 9/12/2019. (Attachments: # 1 Proposed Order, # 2 Exhibit)(Jones, Karianne) (Filed on 7/25/2019) (Entered: 07/25/2019)
137 ORDER by Magistrate Judge Jacqueline Scott Corley granting 135 Motion for Pro Hac Vice as to Elizabeth Tang. (ahmS, COURT STAFF) (Filed on 7/29/2019) (Entered: 07/29/2019)
138 STIPULATION WITH PROPOSED ORDER re Modification of Briefing Schedule filed by Elisabeth DeVos, Candice Jackson, Kenneth L. Marcus, U.S. Department of Education. (Attachments: # 1 Declaration Takemoto)(Takemoto, Benjamin) (Filed on 8/8/2019) (Entered: 08/08/2019)
139 ORDER by Magistrate Judge Jacqueline Scott Corleygranting 138 Stipulation Modification of Briefing Schedule. (ahm, COURT STAFF) (Filed on 8/8/2019) (Entered: 08/08/2019)
Set/Reset Deadlines as to 136 MOTION for Summary Judgment . Responses due by 8/29/2019. Replies due by 9/19/2019. (ahm, COURT STAFF) (Filed on 8/8/2019) (Entered: 08/08/2019)
140 Cross−MOTION for Summary Judgment and Opposition to Plaintiffs' MOTION for Summary Judgment (ECF No. 136 ) filed by Elisabeth DeVos, Candice Jackson, Kenneth L. Marcus, U.S. Department of Education. Motion Hearing set for 10/17/2019 09:00 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Jacqueline Scott Corley. Responses due by 9/19/2019. Replies due by 10/3/2019. (Attachments: # 1 Declaration of William Trachman)(Myers, Steven) (Filed on 8/29/2019) Modified on 8/30/2019 (slhS, COURT STAFF). (Entered: 08/29/2019)

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 18 of 19

09/19/2019 09/25/2019
09/27/2019 10/03/2019 10/17/2019

141 REPLY (re 136 MOTION for Summary Judgment , 140 Cross−MOTION for Summary Judgment ) filed byEqual Rights Advocates, SurvJustice Inc, Victim Rights Law Center. (Attachments: # 1 Exhibit)(Jones, Karianne) (Filed on 9/19/2019) (Entered: 09/19/2019)
142 ADMINISTRATIVE MOTION Leave to Exceed Page Limit for October 3, 2019, Reply Memorandum filed by Elisabeth DeVos, Candice Jackson, Kenneth L. Marcus, U.S. Department of Education. Responses due by 9/30/2019. (Attachments: # 1 Declaration of Steven A. Myers)(Myers, Steven) (Filed on 9/25/2019) (Entered: 09/25/2019)
143 ORDER by Magistrate Judge Jacqueline Scott Corley granting 142 Administrative Motion to exceed page limits. (ahm, COURT STAFF) (Filed on 9/27/2019) (Entered: 09/27/2019)
144 REPLY in Support (re 140 Cross−MOTION for Summary Judgment) filed by Elisabeth DeVos, Candice Jackson, Kenneth L. Marcus, U.S. Department of Education. (Myers, Steven) (Filed on 10/3/2019) (Entered: 10/03/2019)
145 Minute Entry for proceedings held before Magistrate Judge Jacqueline Scott Corley: Motion Hearing held on 10/17/2019 re 136 Motion for Summary Judgment filed by SurvJustice Inc, Victim Rights Law Center, Equal Rights Advocates, & 140 Cross−Motion for Summary Judgment filed by U.S. Department of Education, Kenneth L. Marcus, Candice Jackson, Elisabeth DeVos. The motions were argued, submitted, and taken under submission. (FTR Time: 9:54−10:36.)

Attorneys for Plaintiffs: Robin Thurston; Karianne Jones. Attorney for Defendants: Steven Myers.

(This is a text−only entry generated by the court. There is no document associated with this entry.)

10/21/2019 10/28/2019
11/01/2019 11/01/2019 11/01/2019 12/06/2019 12/20/2019

(ahm, COURT STAFF) (Date Filed: 10/17/2019) Modified on 10/21/2019: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 10/17/2019)
146 TRANSCRIPT ORDER for proceedings held on 10/17/2019 before Magistrate Judge Jacqueline Scott Corley by Equal Rights Advocates, SurvJustice Inc, Victim Rights Law Center, for Court Reporter FTR − San Francisco. (Thurston, Robin) (Filed on 10/21/2019) (Entered: 10/21/2019)
147 Transcript of Proceedings held on October 17, 2019, before Judge Jacqueline Scott Corley. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367−3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 146 Transcript Order, ) Redaction Request due 11/18/2019. Redacted Transcript Deadline set for 11/29/2019. Release of Transcript Restriction set for 1/27/2020. (Related documents(s) 146 ) (Columbini, Joan) (Filed on 10/28/2019) (Entered: 10/28/2019)
148 NOTICE of Change of Address by Benjamin Thomas Takemoto (Takemoto, Benjamin) (Filed on 11/1/2019) (Entered: 11/01/2019)
149 ORDER by Magistrate Judge Jacqueline Scott Corley denying 136 Motion for Summary Judgment; granting 140 Motion for Summary Judgment. (ahm, COURT STAFF) (Filed on 11/1/2019) (Entered: 11/01/2019)
150 JUDGMENT. Signed by Magistrate Judge Jacqueline Scott Corley on 11/1/2019. (ahm, COURT STAFF) (Filed on 11/1/2019) (Entered: 11/01/2019)
151 NOTICE of Change In Counsel by Javier M. Guzman (Guzman, Javier) (Filed on 12/6/2019) (Entered: 12/06/2019)
152 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Equal Rights Advocates, Victim Rights Law Center. Appeal of Order on Motion for Summary

Case: 3:18-cv-535 As of: 05/16/2020 12:48 PM PDT 19 of 19

12/23/2019 01/21/2020

Judgment, 149 , Judgment 150 (Pay.gov Agency Tracking ID 0971−14000957.) (Thurston, Robin) (Filed on 12/20/2019) (Entered: 12/20/2019)
153 USCA Case Number 19−17555 for 152 Notice of Appeal filed by Victim Rights Law Center, Equal Rights Advocates. (tnS, COURT STAFF) (Filed on 12/23/2019) (Entered: 12/23/2019)
154 Transcript Designation Form for proceedings held on 7/19/18, 3/7/19, 5/2/19, 10/17/19 before Judge Jacqueline Scott Corley, re 152 Notice of Appeal, Transcript due by 2/18/2020. (Thurston, Robin) (Filed on 1/21/2020) (Entered: 01/21/2020)

 
 Case 3:18-cv-00535-JSC Document 1 Filed 01/25/18 Page 1 of 41

1 Jennifer A. Reisch (CA Bar No. 223671)

Equal Rights Advocates 2 1170 Market Street, Suite 700

3

San Francisco, CA 94102 Ph: (415) 896-0672

4 Fax: (415) 231-0011 Emails: jreisch@equalrights.org

5

Javier M. Guzman* 6 Skye L. Perryman*

7

Robin Thurston* Karianne Jones*

8 Democracy Forward Foundation 1333 H St. NW
9 Washington, DC 20005
Ph: (202) 448-9090 10 Fax: (202) 701-1775
11 Emails: jguzman@democracyforward.org, sperryman@democracyforward.org, rthurston@democracyforward.org, kjones@democracyforward.org

12 Leecia Welch (CA Bar No. 208741)
13 Alice Y. Abrokwa*

National Center for Youth Law 14 405 14th Street, 15th Floor

15 Oakland, CA 94612, and 1313 L Street, NW, Suite 130

16 Washington, DC 20005 Ph: (510) 835-8098
17 Fax: (510) 835-8099
Emails: lwelch@youthlaw.org, aabrokwa@youthlaw.org 18

19 Emily Martin* Neena Chaudhry*

20 Sunu Chandy*

Alexandra Brodsky* 21 National Women’s Law Center

22

11 Dupont Circle, NW, Suite 800 Washington, DC 20036

23 Ph: (202) 588-5180 Fax: (202) 588-5185

24 Emails: emartin@nwlc.org, nchaudhry@nwlc.org, etang@nwlc.org, schandy@nwlc.org,

abrodsky@nwlc.org 25

26 *pro hac vice motions forthcoming

27 Counsel for Plaintiffs

28

Complaint for Injunctive Relief; Case No.: Page: 1

Case 3:18-cv-00535-JSC Document 1 Filed 01/25/18 Page 2 of 41

1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

2

SAN FRANCISCO DIVISION

3 SURVJUSTICE, INC.,

)

4 1015 15th Street NW, Suite 632 Washington, DC 20005,

) )

5 EQUAL RIGHTS ADVOCATES
6 1170 Market Street, Suite 700

) ) ) )

San Francisco, CA 94102, 7

) )

8 VICTIM RIGHTS LAW CENTER 520 SW Yamhill Street
9 Portland, OR 97204,

) ) ) )

10

Plaintiffs,

) )

11 v.

) )

12 ELISABETH D. DEVOS, in her official
13 capacity as Secretary of Education,

) ) ) )

400 Maryland Avenue SW 14 Washington, DC 20202,

) )

15 CANDICE JACKSON, in her official

) )

16 17

capacity as Acting Assistant Secretary for )

Civil Rights, 400 Maryland Avenue SW

) ) )

Washington, DC 20202, 18

) )

19

U.S. DEPARTMENT OF EDUCATION, 400 Maryland Avenue SW

) )

20 Washington, DC 20202,

) )

21

Defendants.

) )

22

)

Case Number:
COMPLAINT FOR INJUNCTIVE RELIEF DEMAND FOR JURY TRIAL

23 1. Plaintiffs SurvJustice, Inc., Equal Rights Advocates, and Victim Rights Law Center bring
24 this action against Defendants U.S. Department of Education (“the Department” or “the
25 agency”), Secretary Elisabeth DeVos, and Acting Assistant Secretary for Civil Rights Candice
26
27 Jackson seeking vacatur of the Department’s new policy, as expressed in a Dear Colleague Letter

28

Complaint for Injunctive Relief; Case No.: Page: 2

Case 3:18-cv-00535-JSC Document 1 Filed 01/25/18 Page 3 of 41

1 and Question and Answers guidance issued on September 22, 2017 (hereinafter jointly referred

2 to as the “2017 Title IX policy”), concerning Title IX of the Education Amendments of 1972

3 (“Title IX”).

4 2.

Over 45 years ago, Congress enacted Title IX to prohibit discrimination on the basis of

5

sex in educational programs and activities receiving federal financial assistance (hereinafter 6

7 “recipients” or “educational institutions”). This landmark civil rights law has helped fight sex

8 discrimination and promote equal educational access and opportunities for girls and women from

9 the classroom to the playing field.

10 3. Twenty years ago, acting on the basis of Supreme Court decisions and the recognition
11 that Title IX’s promise of equality is hollow if a student can be subjected to sexual harassment
12 with impunity, the Department issued its first guidance to educational institutions (both K-12
13 schools and institutions of higher education) on the standards that govern their response to sexual
14
15 harassment, a form of sex discrimination. Since then, through several successive guidance

16 materials issued under Administrations led by both political parties, the Department has

17 reaffirmed that Title IX’s prohibition on sex discrimination requires recipients to prevent and
18 redress sex and gender-based harassment. These policies recognize that students who experience
19 sexual harassment, including in its most extreme form, sexual violence, suffer not only
20 physically and emotionally, but also in their ability to participate in and benefit from educational
21 22 opportunities, on the basis of their sex.
23 4. The reaffirmation of Title IX’s protections continued until September 2017, when the

24 Department formally rescinded sexual violence guidance documents issued in 2011 and 2014—

25 purportedly because they were issued without notice and comment—and issued new conflicting 26

27

28

Complaint for Injunctive Relief; Case No.: Page: 3

Case 3:18-cv-00535-JSC Document 1 Filed 01/25/18 Page 4 of 41
1 policy documents to educational institutions—without notice and comment.1 The 2017 Title IX
2 policy is substantively unlawful and procedurally deficient. It conflicts with existing Title IX 3 requirements and fails to provide a reasoned justification for its reversal in position. It is also 4
based on a legally and factually mistaken view that earlier guidance limited due process 5
protections for students. And in issuing the 2017 Title IX policy, the Department failed to take 6 7 into account reliance interests that students, and organizations like Plaintiffs that work with
8 students, have in the protections set out in prior guidance documents.
9 5. The 2017 Title IX policy imposes significant changes on educational institutions and on
10 students. For example, whereas before, educational institutions were permitted to offer interim 11
measures, such as a revised class schedule or new housing assignment, to a student who had 12
complained of sexual harassment, now they are prohibited from issuing interim measures in a 13
manner that minimizes the burden those students. The 2017 Title IX policy also relaxes 14 15 protections for sexual harassment victims, such as by permitting mediation between the parties,
16 even in cases of alleged sexual assault.
17 6. Underlying these changes and reversals are unfounded generalizations about women and
18 girls, particularly their credibility regarding reported experiences of sexual harassment, including 19
sexual violence. Myriad statements and actions by the Department’s leadership reveal this 20
discriminatory viewpoint. Thus, not only does the Department’s 2017 Title IX policy fail to meet 21 22 the reasoned decision and other requirements of the Administrative Procedure Act, it also
23
24
25 1 See U.S. Dep’t of Educ., Ltr. from Ass’t Sec’y Candice Jackson (Sept. 22, 2017),
26 https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf (“2017 Dear Colleague Letter”); U.S. Dep’t of Educ., Q&A on Campus Sexual Misconduct (Sept. 22, 2017),
27 https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf (“2017 Q&A”). 28
Complaint for Injunctive Relief; Case No.: Page: 4

Case 3:18-cv-00535-JSC Document 1 Filed 01/25/18 Page 5 of 41

1 violates the Fifth Amendment’s equal protection guarantee. Plaintiffs therefore respectfully

2 request that the 2017 Title IX policy be vacated.

3

Jurisdiction and Venue

4 7. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.

5 8.
6

Venue is proper under 28 U.S.C. § 1391(e) because Equal Rights Advocates, a plaintiff,

resides in San Francisco, California. 7

8

Intradistrict Assignment

9 9. Filing is proper in this Judicial District because Equal Rights Advocates, a plaintiff, is

10 located in San Francisco, California.

11

Parties

12 10. Plaintiff SurvJustice, Inc., (“SurvJustice”) is a national not-for-profit organization based
13 in Washington, D.C., founded in 2014. SurvJustice’s mission is to increase the prospect of
14
justice for survivors of sexual violence. It pursues this goal through legal assistance, policy 15

16 advocacy, and institutional training. Through its efforts, SurvJustice aims to decrease the

17 prevalence of sexual violence throughout the country.

18 11. SurvJustice provides legal assistance to survivors of sexual violence in campus
19 proceedings, as well as civil and criminal legal systems. The majority of requests for legal
20 assistance that SurvJustice receives are from students at institutions of higher education.
21 SurvJustice staff help sexual violence survivors navigate the campus grievance process,
22 23 including reporting the violence, assisting survivors throughout any investigation, advising
24 survivors in campus hearings, helping survivors with any appeals, and helping survivors access

25 accommodations and services from their educational institutions. They frequently serve as

26 “advisors of choice” for college students in institutional disciplinary actions for cases of alleged 27 domestic violence, dating violence, sexual assault or stalking, as provided for by the Clery Act as 28

Complaint for Injunctive Relief; Case No.: Page: 5

Case 3:18-cv-00535-JSC Document 1 Filed 01/25/18 Page 6 of 41
1 amended by the 2013 Violence Against Women Reauthorization Act, 29 U.S.C. §
2 1092(f)(8)(B)(iv)(II) (“Clery Act”). SurvJustice staff also represent survivors in civil litigation or 3 refer survivors to other qualified lawyers for such representation. SurvJustice also assists 4
survivors in reporting crimes to law enforcement, in advocating for prosecution, and by serving 5
as media representatives for victims and their families in high-profile criminal cases. 6 7 12. SurvJustice also trains educational institutions to prevent and address sexual violence 8 through compliance with federal law, enforcement of victims’ rights, and adoption of best
9 practices that include development of a culture that supports survivors and encourages “sexual
10 respect” (i.e., respect in sexual interactions and relationships). As part of this work, SurvJustice 11
has provided the annual training required by the Clery Act, to various campus officials across the 12
country who investigate and adjudicate complaints of sexual assault, dating violence, domestic 13
violence, and stalking. 14 15 13. SurvJustice also engages in policy advocacy by providing technical assistance and advice
16 to legislators and policymakers on various state and federal legislation and policy efforts
17 regarding sexual violence, and working with changemakers within their communities on local 18 policy efforts, especially on college and university campuses. 19
14. SurvJustice brings this action on its own behalf because the challenged 2017 Title IX 20
policy (i) requires resource-intensive efforts that impede its daily operations; (ii) limits the 21 22 efficacy of available avenues of redress; (iii) increases the costs it bears in its work on behalf of 23 sexual violence survivors—for example by causing it to waive intake fees and reduce or waive
24 speaking fees; and (iv) otherwise directly conflicts with, impairs, and frustrates SurvJustice’s
25 organizational mission and priorities. 26
27
28
Complaint for Injunctive Relief; Case No.: Page: 6

Case 3:18-cv-00535-JSC Document 1 Filed 01/25/18 Page 7 of 41

1 15. As an organization that provides direct assistance and referral services to survivors of

2 sexual violence, SurvJustice’s core mission and daily operations have been and will continue to
3 be impeded by the chilling effect that the 2017 Title IX policy has had and continues to have on 4
the reporting of sexual violence. 5
16. Following and as a result of the 2017 Title IX policy change, SurvJustice experienced a 6 7 decrease in the number of sexual violence survivors seeking its services. This trend is borne out
8 by SurvJustice’s interactions with particular college and university students who have questioned

9 whether they should continue with their plans to report sexual violence given the uncertainty

10 regarding their legal protections and an anticipated lowered likelihood of success created by the

11 policy change.

12 17.
13

Following the 2017 Title IX policy change and as a result of the change, SurvJustice has

provided an increased number of student rights trainings at college and university campuses. 14

15 These additional trainings are necessary to respond to confusion created by the 2017 Title IX

16 policy among students about their legal rights. SurvJustice has also significantly reduced its price

17 for doing these trainings or agreed to provide them pro bono in response to increased need
18 resulting from the widespread uncertainty among students regarding their legal protections
19 following the 2017 Title IX policy change.
20 18. SurvJustice has also had to devote significant staff time to reviewing and understanding
21 22 the 2017 Title IX policy in order to advise clients in ongoing campus investigations and advocate
23 on their behalf. This shift in use of time has decreased the amount of time that SurvJustice has

24 available to provide legal services, including work on ongoing civil litigation.

25 19. The 2017 Title IX policy makes it more difficult for SurvJustice to accomplish its 26 mission of obtaining justice for survivors of sexual violence, both because it makes beneficial 27

28

Complaint for Injunctive Relief; Case No.: Page: 7

Case 3:18-cv-00535-JSC Document 1 Filed 01/25/18 Page 8 of 41
1 outcomes less likely for survivors and because even where those outcomes are still available,
2 success will take more staff time and effort. 3 20. For example, SurvJustice often advocates for schools to provide accommodations to its 4
clients, including during the pendency of an investigation, so that they can continue to learn 5
safely. SurvJustice often requests unilateral no-contact orders on its clients’ behalf but has 6 7 opposed mutual no-contact orders because they tend to be retaliatory.2 Yet the agency’s Title IX
8 policy change requires no-contact orders to be mutual, by prohibiting a school from making
9 interim measures available to only one party. The 2017 Title IX policy therefore impedes
10 SurvJustice’s mission by making it more difficult for SurvJustice to obtain interim measures that 11
are appropriate for survivors of sexual harassment, and ensure ongoing access to education for its 12
clients in accordance with its mission. 13
21. In addition, since the 2017 Title IX policy no longer identifies any benchmarks to 14 15 determine whether colleges and universities are meeting their obligation to resolve reports of
16 sexual violence in a timely fashion, SurvJustice has observed a trend in educational institutions
17 not responding at all, or not responding as promptly, to its clients’ complaints. This trend has
18 required SurvJustice to spend additional staff time and resources that it has not had to spend in 19
the past attempting to get school officials to respond to a survivor’s complaint of sexual violence. 20
22. The agency’s 2017 Title IX policy also makes it more difficult for SurvJustice to obtain 21 22 beneficial results for its clients due to, among other particulars, its endorsement of one-sided
23
24 25 2 SurvJustice argues that mutual no-contact orders are forms of retaliation when there is no basis
to place the order against victim-complainants other than the fact that they made a Title IX 26 complaint. In such instances, schools limit victims’ access to educational opportunities and
benefits as a direct result of the victims’ assertion of their federal rights and utilization of the 27 Title IX grievance process. 28
Complaint for Injunctive Relief; Case No.: Page: 8

Case 3:18-cv-00535-JSC Document 1 Filed 01/25/18 Page 9 of 41
1 appeal rights and a heightened standard of evidence that disfavors survivors and makes findings
2 of responsibility for sexual misconduct more onerous. 3 23. Plaintiff Equal Rights Advocates (“ERA”) is a national non-profit civil rights 4
organization based in San Francisco, California. Founded in 1974, ERA is dedicated to 5
protecting and expanding economic educational access and opportunities for women and girls. 6 7 24. ERA furthers its mission through engaging in public education efforts as well as policy 8 reform and legislative advocacy; providing free legal information and counseling; and litigating
9 cases involving issues of gender discrimination in employment and education at all stages, from
10 the administrative agency process through and including the United States Supreme Court. ERA 11
has a long history of pursuing gender justice and equal opportunity for women and girls in 12
education and has litigated a number of important precedent-setting cases under Title IX, 13
including Doe v. Petaluma City School District, 54 F.3d 1447 (9th Cir. 1995), which held for the 14 15 first time that a school can be sued for sex discrimination under that law when it fails to address
16 one student’s serious harassment of another. ERA has participated as amicus curiae in scores of
17 state and federal cases involving the interpretation and application of procedural rules and civil 18 rights laws that have an impact on access to justice and economic opportunity for women and 19
girls. Through its Advice and Counseling program, ERA also provides free information and 20
assists individuals on matters relating to sex and gender discrimination at work and in school. As 21 22 part of its mission, ERA counsels and represents women who have been victims of sexual 23 harassment and/or sexual assault in matters pursuant to Title IX.
24 25. ERA brings this action on its own behalf because the challenged 2017 Title IX policy (i)
25 requires resource-intensive efforts that divert resources from its daily operations; (ii) limits the 26 efficacy of available avenues of redress to ERA’s clients and others it serves, (iii) increases the 27
28
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Case 3:18-cv-00535-JSC Document 1 Filed 01/25/18 Page 10 of 41
1 costs ERA bears in its work on behalf of student survivors of sexual violence; and (iv) otherwise
2 directly conflicts with, impairs, and frustrates ERA’s organizational mission and programmatic 3 priorities. 4
26. ERA has had to expend resources over and above what it would otherwise have expended 5
in order to counteract the effects of the 2017 Title IX policy change. For example, to counteract 6 7 the effects of the Title IX policy change, ERA has had to divert staff time and resources away 8 from core programmatic activities, such as litigating employment-related civil rights
9 enforcement cases and cases involving Title IX enforcement that do not relate to sexual violence
10 in schools, in order to step up its efforts to assist victims of sexual harassment and assault in 11
educational settings obtain redress. In particular, ERA has launched a national initiative to End 12
Sexual Violence in Education (“ESVE”) to narrow a justice gap for survivors of sexual violence 13
that is expanding rapidly given the unlawful actions Defendants have taken. Through the ESVE 14 15 Initiative, which was launched as a result of the Department’s 2017 Title IX policy change, ERA
16 is expanding its Advice & Counseling program, re-designing its intake process, and developing
17 new resources to better reach and serve individuals facing sexual harassment and violence in 18 schools. Additionally, as part of ESVE and in order to counteract the negative impact of policy 19
changes and rollbacks at the federal level on ERA’s clients and the communities it serves, ERA 20
is expending resources and diverting resources away from core programmatic activities to 21 22 establish a network of attorneys to provide pro bono counseling and other assistance to victims 23 of sexual harassment and assault in schools. It also is planning to build a new website where
24 advocates for survivors can find and share resources with each other.
25 27. Moreover, as an organization that has a longstanding history of providing direct 26 assistance and referral services to survivors of sexual violence, ERA is hampered in its ability to 27
28
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Case 3:18-cv-00535-JSC Document 1 Filed 01/25/18 Page 11 of 41
1 assist the victims of sexual harassment and assault that it represents and counsels in obtaining
2 equitable outcomes and redress for the harms they have suffered. In particular, and as discussed 3 more fully below, the 2017 Title IX policy change permits schools to offer asymmetric appellate 4
rights that disadvantage victims of sexual harassment, including sexual assault; permits schools 5
to evade responsibility for protecting students and the school community as a whole by resolving 6 7 claims of sexual assault privately through mediation; and rolls back other critical protections for 8 survivors that inhibit ERA’s ability to obtain redress and achieve results for its clients.
9 28. Plaintiff Victim Rights Law Center (“VRLC”) is a non-profit organization with
10 locations in Oregon and Massachusetts dedicated solely to serving the legal needs of rape and 11
sexual assault victims. The VRLC’s mission is to provide legal representation to victims of rape 12
and sexual assault to help rebuild their lives; and to promote a national movement committed to 13
seeking justice for every rape and sexual assault victim. 14 15 29. VRLC provides legal services to help restore victims’ lives after experiencing sexual
16 violence, ensuring that survivors may stay in school; protecting their privileged and confidential
17 mental health, medical and education records; preserving their employment; maintaining safe 18 housing; securing their immigration status; and swiftly accessing victim compensation and other 19
benefits. As part of its work, VRLC provides legal services and/or facilitates the provision of 20
legal services to individuals who have experienced sexual violence and/or assault on campuses. 21 22 With almost 50% of VRLC’s clients under the age of 24, a substantial portion of its practice is 23 providing education related legal consultation and representation. VRLC attorneys represent
24 campus victims to communicate effectively with campus administrators, acquire interim
25 measures and accommodations to secure their education, prepare and attend disciplinary 26
27
28
Complaint for Injunctive Relief; Case No.: Page: 11

Case 3:18-cv-00535-JSC Document 1 Filed 01/25/18 Page 12 of 41
1 hearings, file appeals and if necessary, to file complaints with the Department of Education,
2 Office of Civil Rights (“OCR”). 3 30. VRLC brings this action on its own behalf, because, as detailed below, the challenged 4
Title IX policy concretely frustrates its mission and purpose through (among other things) (i) 5
requiring resource-intensive efforts that impede its daily operations, (ii) impairing its mission of 6 7 providing legal assistance to survivors of sexual assault and/or violence, (iii) limiting the efficacy 8 of available avenues of redress for the population it seeks to serve, (iv) requiring that resources
9 be diverted in order to combat the harmful effects of the Title IX policy and (v) otherwise
10 directly conflicts with, impairs, and frustrates VRLC’s organizational mission and priorities. 11
31. The new 2017 Title IX policy has been devastating to VRLC’s mission and its 12
operational activities. For example, as result of the 2017 Title IX policy, sexual violence and 13
assault victims have expressed an unwillingness to report harassment and assault to campus 14 15 authorities, denying VRLC the ability to achieve its mission. VRLC saw an immediate chilling
16 effect after the Department issued its 2017 Dear Colleague letter and new Title IX policy. VRLC
17 has seen a decline in the number of sexual violence and assault survivors willing to pursue 18 justice through campus processes. The 2017 Title IX policy makes it less likely for VRLC 19
clients to engage in the campus process due to, among other particulars, its endorsement of one20
sided appeal rights and a heightened standard of evidence that disfavors survivors and makes 21 22 findings of responsibility for sexual assault and violence more onerous. Moreover, as a result of 23 the new Title IX policy there has been a decline in the number of survivors willing to file
24 complaints with the Department of Education and/or otherwise communicating with the
25 Department of Education where there is already an investigation pending. Such declines in 26 reporting and hesitance to participate in the grievance process either through educational 27
28
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Case 3:18-cv-00535-JSC Document 1 Filed 01/25/18 Page 13 of 41
1 institutions or at the Department of Education directly threaten and frustrate VRLC’s mission
2 and purpose. 3 32. In addition to chilling and discouraging sexual violence and assault victims from availing 4
themselves of campus processes, the new Title IX policy has made it difficult for VRLC to 5
provide appropriate legal advice that helps its clients weigh their options with the best 6 7 information, leading to further reductions in reports of sexual violence and assault. 8 33. In cases where a survivor or victim may proceed with a claim (which is rare under the
9 new Title IX policy), VRLC’s mission remains frustrated given the nature of the Title IX policy.
10 In particular, the 2017 Title IX policy makes it more difficult for VRLC to accomplish its 11
mission of obtaining justice for survivors of sexual violence, both because it makes beneficial 12
outcomes less likely for survivors and because even where those outcomes are still available, 13
success will take more staff time and effort. In addition, since the 2017 Title IX policy no longer 14 15 requires colleges and universities to resolve reports of sexual violence in a timely fashion, VRLC
16 has observed a trend in educational institutions not responding or not responding as promptly to
17 its clients’ complaints. This trend has required VRLC to spend additional staff time and 18 resources that it has not had to spend in the past attempting to get school officials to respond. 19
34. VRLC has also had to devote staff time to reviewing and understanding the 2017 Title IX 20
policy in order to advise clients in ongoing campus investigations and advocate on their behalf. 21 22 This use of time has decreased the amount of time that it has available to provide legal services, 23 including work on ongoing civil litigation.
24 35. Defendant U.S. Department of Education (“the Department” or “the agency”) is a
25 federal agency headquartered in Washington, D.C. As discussed more fully below, the 26 Department implements Title IX through issuing regulations and guidance documents and is also 27
28
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1 tasked with administrative enforcement of Title IX, 20 U.S.C. § 1682. As a federal agency, the

2 Department is subject to the requirements of the Administrative Procedure Act and the United
3 States Constitution. 4
36. Defendant Elisabeth D. DeVos is the United States Secretary of Education. She is sued 5
in her official capacity. 6 7 37. Defendant Candice Jackson is the Acting Assistant Secretary for Civil Rights and
8 Deputy Assistant Secretary for Strategic Operations and Outreach for the Department. She is

9 sued in her official capacity.

10

Background

11 38. Sexual harassment, which is conduct, including but not limited to unwelcome sexual
12 advances, requests for sexual favors, and other unwelcome verbal, nonverbal, or physical
13 conduct of a sexual nature that targets someone because of their sex, including sexual assault or
14
15 other sexual violence (hereinafter “sexual harassment” or “sexual harassment, including sexual

16 violence”), is widespread in schools across the country, particularly in institutions of higher

17 education.

18 39. Sexual harassment disproportionately impacts women and girls. One in five women and
19 one in fourteen men experience sexual assault while in college.3 As the last Administration’s
20 Task Force to Protect Students from Sexual Assault concluded: “For female bisexual and
21

22

23 3 The White House, The Second Report of the White House Task Force to Protect Students from

24

Sexual Assault, 9 (Jan. 5, 2017), https://obamawhitehouse.archives.gov/sites/obamawhitehouse. archives.gov/files/images/Documents/1.4.17.VAW%20Event.TF%20Report.PDF. Similarly, a

25 2007 report by the National Criminal Justice Service found that one in five women were victims of sexual assault while in college and that approximately 6.1 percent of men were victims of

26 completed or attempted sexual assault during college. In high schools, during the 2007-2008

school year, there were 800 reported incidents of rape or attempted rape and 2,800 reported 27 incidents of other sexual batteries.

28

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1 transgender students, victimization rates are even higher: More than 1 in 4 transgender students

2 and more than 1 in 3 of bisexual students experience sexual assault while in college.”4
3 40. While sexual harassment on college campuses is more widely known, students of all ages 4
face sexual harassment, including sexual assault. A nationally representative survey of students 5
in grades 7-12 in 2011 concluded that nearly half of the students surveyed experienced some 6
7 form of sexual harassment that school year, and the majority said that the experience had a
8 negative effect on them.5 Of these students, “[g]irls were more likely than boys to be sexually

9 harassed, by a significant margin.”6 Children who experience sexual violence are nearly 14 times

10 more likely to experience rape or attempted rape in their first year of college, according to the

11 National Center for Victims of Crime.7

12 41.
13

Experiences of sexual violence harm students physically, psychologically, and

academically. Research shows that the effects of sexual assault in high school has consequences 14

15 that are “delayed and long lasting.”8 Sexually victimized students are more likely to drop classes,

16

17

18

19 4 Id.
20 5 Catherine Hill and Holly Kearl, Crossing The Line, Sexual Harassment at School, American Association of University Women, 2 (2011), https://www.aauw.org/files/2013/02/Crossing-the-
21 Line-Sexual-Harassment-at-School.pdf.
22 6 Id.
23 7 Mark Keierleber, The Younger Victims of Sexual Violence in School, The Atlantic, Aug. 10, 2017, https://www.theatlantic.com/education/archive/2017/08/the-younger-victims-of-sexual-
24 violence-in-school/536418/.
25 8 Dana Bolger, Gender Violence Costs: School’s Financial Obligations Under Title IX, 125, Yale L.J. 2106, 2118 (2016), https://www.yalelawjournal.org/feature/gender-violence-costs-schools-
26 financial-obligations-under-title-ix#_ftnref72 (“Violence—and institutional indifference in its wake—changes the courses of survivors’ lives, with educational and employment consequences
27 following them far into the future.”).
28

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1 change residences, and have lower GPAs, creating long-term consequences for professional

2 success and earning potential.9
3 42. Incidents of sexual harassment, including sexual violence, are often underreported, 4
especially on college campuses. For example, the Campus Climate Survey Validation Study 5
found that only 7 percent of students who indicated that they had been raped reported the rape to 6 7 school authorities.10
8 43. If unreported or inappropriately addressed, sexual harassment can continue unchecked

9 and create ongoing hostile environments for those who are the targets of such attacks.

10

Title IX of the Education Amendments of 1972

11 44. Signed into law by President Nixon, Title IX of the Education Amendments of 1972, 20
12 U.S.C. § 1681, prohibits discrimination on the basis of sex in any federally-funded education
13 program or activity. When a recipient institution fails to comply with Title IX or to take action to
14
15 remedy its non-compliance, it can be subject to a range of enforcement actions, including the

16 loss of federal financial assistance. 20 U.S.C. § 1682.

17 45. The Supreme Court has squarely held that sexual harassment, which includes sexual

18 violence, is a form of sex discrimination that Title IX requires schools to address and 19 remediate.11 20

21

22 9 Victoria L. Banyard et al., Academic Correlates of Unwanted Sexual Contact, Intercourse,
23 Stalking, and Intimate Partner Violence: An Understudied but Important Consequence for 24 College Students, J. of Interpersonal Violence (June 21, 2017),
http://journals.sagepub.com/doi/10.1177/0886260517715022; 25 10 The White House, supra note 3 at 10.
26 11 See, e.g., Franklin v. Gwinnett Cnty Public Schools, 503 U.S. 60, 75 (1992) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986); Davis v. Monroe Cnty. Bd. of Educ., 526 U.S.
27 629 (1999); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998).
28

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1

The Department of Education’s Implementation and Enforcement of Title IX

2 46. The U.S. Department of Education is the lead agency charged with enforcing Title IX. It

3 may do so by establishing rules, regulations, and procedures that implement Title IX and define
4 the ways in which educational institutions comply with Title IX’s requirements. See 20 U.S.C.
5 § 1682.
6 47. In 1975, the Department’s predecessor promulgated regulations to effectuate Title IX.
7
8 See 40 Fed. Reg. 24,128 (June 4, 1975). As amended, those regulations remain in effect today.

9 See 34 C.F.R. pt. 106. Among other things, the regulations incorporate Title IX’s

10 nondiscrimination mandate, see id. § 106.31(a), identify specific actions that constitute
11 discrimination, see id. § 106.31(b), and require assurances from recipients of federal financial 12
assistance that their programs and activities comply with regulatory requirements, see id. 13
§ 106.4(a). 14 15 48. Recipients found to have discriminated on the basis of sex must “take such remedial
16 action as the Assistant Secretary [for Civil Rights] deems necessary to overcome the effects of

17 such discrimination.” Id. § 106.3(a).

18 49. The regulations require that recipients “adopt and publish grievance procedures providing
19 for prompt and equitable resolution” of student and employee complaints of sexual 20
discrimination, including sexual assault and other forms of sexual harassment. Id. § 106.8(b). 21
Such grievance procedures are designed to facilitate the reporting and resolution of complaints of 22
23 such sex discrimination so as to prevent and remedy hostile environments on campus.
24 50. These same regulations require that educational institutions “designate at least one

25 employee”—commonly known as a Title IX coordinator—“to coordinate its efforts to comply

26 with and carry out its responsibilities” under Title IX, including any investigation of any 27

28

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1 complaint of sexual discrimination, including sexual violence and other forms of sexual

2 harassment. Id. § 106.8(a).

3 51. In addition to promulgating Title IX’s implementing regulations, the Department has

4 issued a series of guidance documents that explain the obligations recipient schools and
5
universities are required to take under Title IX. 6

7

The 1997 Sexual Harassment Guidance

8 52. The first of such guidance documents addressing educational institutions’ obligations to

9 address sexual harassment, titled Sexual Harassment Guidance: Harassment of Students by

10 School Employees, Other Students, or Third Parties, was published in 1997 after a public notice
11 and comment period and “extensive consultation with interested parties, [including] students, 12
teachers, school administrators, and researchers.” See 61 Fed. Reg. 42,728 (Aug. 16, 1996), 61 13
Fed. Reg. 52,172 (Oct. 4, 1996), and 62 Fed. Reg. 12,034, 120,35 (Mar. 13, 1997) (“1997 14 15 Guidance”). The 1997 Guidance provided information regarding the standards used by the
16 Department’s Office for Civil Rights (“OCR”) to investigate student complaints regarding

17 educational institutions’ responses to sexual harassment perpetuated by school employees, other

18 students (peers), or third parties.
19 53. The 1997 Guidance set forth principles for how educational institutions should address 20
sexual harassment in the educational setting. It noted that schools “are required by the Title IX 21
regulations to adopt and publish grievance procedures providing for prompt and equitable 22
23 resolution of sex discrimination complaints, including complaints of sexual harassment, and to
24 disseminate a policy against sex discrimination.” Id. at 12,040.

25 54. With respect to “informal mechanisms” for resolving complaints, the 1997 Guidance

26 explained that they may be used by mutual consent of the parties but that it was inappropriate for
27 a complaining student to be required to work out the problem directly with the individual
28

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1 accused of harassment and that mediation would be inappropriate even on a voluntary basis in

2 cases that involve sexual assault. Id. at 12,045.
3 55. The 1997 Guidance further explained that, during an investigation of a complaint, a 4
school may take appropriate interim and remedial measures, such as placing the involved 5
students in separate classes or in different housing arrangements. The touchstone for these 6 7 measures was that they “be designed to minimize, as much as possible, the burden on the student
8 who was harassed.” Id. at 120,43.

9 56. The 1997 Guidance also made clear that, beyond temporary interim accommodations, a

10 school “may be required to provide . . . services to the student who was harassed if necessary to
11 address the effects of the harassment on that student.” Such service might include tutoring and
12 mental health counseling. Id.
13 57. The 1997 Guidance set forth factors that OCR would consider in evaluating whether a
14
15 school’s grievance procedures were “prompt and equitable,” noting that “many schools …

16 provide an opportunity to appeal the findings or remedy or both.” Id. at 12,044.

17 58. The 1997 Guidance explained that other legal or adjudicatory processes could not
18 substitute for a school’s own processes. For example, where possible criminal conduct was
19 involved, a police investigation “may be useful in terms of fact-gathering,” but, “because legal
20 standards for criminal conduct are different, police investigations or reports may not be
21 22 determinative of whether harassment occurred under Title IX and do not relieve the school of its
23 duty to respond promptly.” Id. at 12,045.

24

The 2001 Revised Sexual Harassment Guidance

25 59. Following the Supreme Court’s 1998 decision in Gebser v. Lago Vista Indep. Sch. Dist.,

26 524 U.S. 274 (1998) and its 1999 decision in Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629
27 (1999), the Department issued revisions to the 1997 Guidance in 2001, entitled Revised Sexual
28

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1 Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third
2 Parties. See 66 Fed. Reg. 5512 (Jan. 19, 2001). 3 60. The 2001 Guidance, which also followed a public notice and comment period, see 62 4
Fed. Reg. 66,092 (Nov. 2, 2000), reaffirms many of the principles set forth in the 1997 5
Guidance. It “explains how the requirements of the Title IX regulations apply to situations 6 7 involving sexual harassment of a student and outlines measures that schools should take to 8 ensure compliance [with Title IX and its implementing regulations].” 2001 Guidance at 4.
9 61. The 2001 Guidance reaffirms the requirement that educational institutions publish
10 grievance procedures “providing for prompt and equitable resolution of sex discrimination 11
complaints, including complaints of sexual harassment, and to disseminate a policy against sex 12
discrimination.” Id. at 14. 13
62. The 2001 Guidance further provides that “[o]nce a school has notice of possible sexual 14 15 harassment of students—whether carried out by employees, other students, or third parties—it
16 should take immediate and appropriate steps to investigate or otherwise determine what occurred
17 and take prompt and effective steps reasonably calculated to end any harassment, eliminate a 18 hostile environment if one has been created, and prevent harassment from occurring again.” Id. 19
at 15. 20
63. The 2001 Guidance specifies a number of factors that would be considered in 21 22 determining whether an educational institution’s grievance procedures were “prompt and 23 equitable,” as required by Title IX and the Department’s implementing regulations, including, as
24 in the 1997 Guidance, the acknowledgment that many schools “provid[ed] an opportunity to
25 appeal the findings or remedy or both.” Id. at 20. 26
27
28
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1 64. The 2001 Guidance also reaffirms that although informal resolution of complaints might

2 be appropriate in some cases, OCR had “frequently advised schools” that “mediation” or other
3 informal resolution would not be appropriate in the context of some forms of sexual harassment, 4
such as sexual assault, even on a voluntary basis. Id. at 21. 5
65. The 2001 Guidance also reiterates the importance of interim measures discussed in the 6 7 1997 Guidance, stressing that such measures “should be designed to minimize, as much as
8 possible, the burden on the student who was harassed.” Id. at 16.

9 66. Like the 1997 Guidance, the 2001 Guidance made clear that, after an investigation has

10 concluded, a school “may be required to provide. . . services to the student who was harassed if

11 necessary to address the effects of the harassment on that student.” Id. at 16-17.

12 67.
13

The 2001 Guidance cautions schools, as did the 1997 Guidance, about relying on police

or insurance company investigations as a substitute for their own processes, again emphasizing 14

15 the different purposes and legal standards applicable in those third-party investigations. Id. at 21.

16 68. Finally, the 2001 Guidance notes that both employees and students of public schools and

17 universities are entitled to certain Constitutional due process protections, and that the rights

18 established under Title IX must be interpreted consistent with any federally guaranteed due
19 process rights involved in a complaint proceeding. The guidance instructed, however, that
20 recipients should ensure that “steps to accord due process rights do not restrict or unnecessarily
21
22 delay the protections provided by Title IX to the complainant.” Id. at 22.

23

The 2011 Dear Colleague Letter and 2014 Q&A Document

24 69. Even with the Department’s enforcement and guidance activities, sexual harassment,

25 including sexual violence, has remained a pervasive problems on campuses and in schools across

26 the country. 27

28

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1 70. In the wake of these ongoing challenges, educational institutions solicited assistance from
2 the Department of Education in further understanding their obligations under Title IX in regard 3 to sexual harassment, particularly sexual violence. Thereafter, in 2011, the Department issued a 4
“Dear Colleague Letter on Sexual Violence” and, in 2014, a set of Questions and Answers to 5
respond to additional concerns raised by schools and students.12 6 7 71. Citing the “deeply troubling” statistics concerning sexual violence on campuses, the 2011
8 Dear Colleague Letter provided clarity on how schools should address peer-on-peer sexual
9 harassment, including sexual violence, as well as steps that schools could take to respond in
10 accordance with the Department’s regulations and 2001 Guidance. 11
72. The 2011 Dear Colleague Letter reiterated, consistent with the 2001 Guidance, the 12
importance of schools offering services to survivors, such as tutoring and mental health care, to 13
ensure that they can continue to learn in the wake of sexual harassment, including sexual 14 15 violence. 2011 Dear Colleague Letter at 15-17. It noted, again consistent with the 2001
16 Guidance, that necessary accommodations may include interim remedies to protect the
17 complainant during the investigation. Id. at 15.
18 73. As in the 2001 Guidance, the 2011 Dear Colleague Letter discussed what constitutes a 19
prompt and equitable adjudication. The 2011 Dear Colleague Letter also made clear that Title IX 20
requires schools to provide complainants and respondents equal rights and opportunities 21 22 throughout an investigation and any appellate process. Id. at 12.
23
24
25 12 See U.S. Dep’t of Educ., Ltr. from Ass’t Sec’y Russlynn Ali (Apr. 4, 2011),
26 https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf (“2011 Dear Colleague Letter”); U.S. Dep’t of Educ., Questions and Answers on Title IX and Sexual Violence (Apr. 29,
27 2014), https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (“2014 Q&A”). 28
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1 74. The 2011 Dear Colleague Letter also discouraged schools from allowing a complainant
2 and alleged perpetrator to directly cross-examine each other. As the guidance explained, 3 “[a]llowing an alleged perpetrator to question an alleged victim directly may be traumatic or 4
intimidating, thereby possibly escalating or perpetuating a hostile environment.” Id. at 12. 5
75. The 2011 Dear Colleague Letter reiterated the ongoing policy expressed in the 2001 6 7 Guidance that mediation is an inappropriate way to resolve complaints of sexual violence. Id. at 8 8.
9 76. The 2011 Dear Colleague Letter also discussed, in response to questions that school
10 administrators had posed, the burden of proof that recipient schools should use in investigating 11
complaints of sexual assault. The 2011 Dear Colleague Letter explained that, in investigating 12
Title IX complaints, OCR reviews a school’s grievance procedures to determine whether a 13
school uses preponderance of the evidence as the complainant’s burden of proof. It explained 14 15 that this burden appropriately reflected the burden used in litigation under Title VII of the Civil
16 Rights Act of 1964, to which courts have looked in construing Title IX, as well as the burden
17 used by OCR in investigating Title IX complaints against recipients of federal funding. Id. at 11. 18 77. Also consistent with the 2001 Guidance, the 2011 Dear Colleague Letter reiterated that 19
public and state-supported schools must provide due process protections to an alleged 20
perpetrator. Id. at 12. 21 22 78. In 2014, the Department issued further clarifications consistent with its previously issued 23 guidance in response to questions that it received from schools and colleges in the form of a
24 Questions and Answers document (“2014 Q&A”). The 2014 Q&A provided examples of
25 proactive efforts schools could take to prevent sexual violence and remedies schools could use to 26 end such conduct, prevent its recurrence, and address its effects. 27
28
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1 79. Among other things, the 2014 Q&A further discussed Title IX’s mandate that schools

2 take steps to ensure equal access to educational programs and activities, including by protecting
3 a complainant with interim measures pending resolution of a complaint. Such measures should 4
allow the complainant to avoid contact with the alleged perpetrator and “to change academic and 5
extracurricular activities or his or her living, transportation, dining, and working situations as 6 7 appropriate.” 2014 Q&A at 32. This requirement is consistent with the 2001 Guidance’s
8 emphasis on Title IX’s mandate to take immediate steps once a complaint is filed to eliminate

9 any hostile environment and prevent harassment from occurring again. Id. at 32-33; see also

10 2001 Guidance at 12.
11 80. The 2014 Q&A also emphasized that schools should provide the same rights and
12 opportunities to complainants and respondents. 2014 Q&A at 26.
13 81. The 2011 Dear Colleague Letter and the 2014 Q&A were not the subject of a public
14
15 notice and comment process because they did not reflect any policy change but rather reminded

16 schools of longstanding statutory and regulatory obligations to address sexual harassment,

17 including sexual violence, while providing more details and examples of how to do so. Both

18 documents were the product of the Department’s consideration of the standards that OCR had
19 relied on in dozens of investigations and reflected the input of students, faculty, administrators,
20 staff, attorneys, Sexual Assault Response Teams (“SARTs”), counselors, student advocates,
21
22 medical personnel, parents, law enforcement, prosecutors, and campus police.

23

The Trump Administration’s Change in Title IX Policy

24 82. Following his inauguration, President Trump appointed Secretary DeVos to lead the

25 Department of Education. In April 2017, Secretary DeVos selected Candice Jackson to serve as

26 Deputy Assistant Secretary and to lead OCR as Acting Assistant Secretary for Civil Rights. 27

28

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1 83. Secretary DeVos and Ms. Jackson have repeatedly criticized the protections that Title IX

2 affords to women and other survivors of sexual harassment, including sexual violence. Much of
3 that criticism has been based on discriminatory stereotypes and unfounded generalizations about 4
female college students in general and female victims of sexual violence in particular. 5
84. For example, Ms. Jackson has repeatedly criticized core civil rights achievements, such 6 7 as legal protections against sexual harassment. For example, in a book she published in 2005,
8 Ms. Jackson stated that laws to combat sexual harassment gloss over “the reality that unwanted

9 sexual advances are difficult to define.”13

10 85. Ms. Jackson regularly questions the veracity of sexual harassment and assault claims

11 made by women, stating, for example:

12

[I]t wasn’t enough that women are not legally forbidden anymore from getting an

13

education and entering the workforce. Feminists and other leftists thought the

problem of workplace sexual harassment needed a legal remedy. Since sexual

14

harassment is such a nebulous experience, defined so subjectively and turning on

15

the perceptions of the people involved, laws banning it are difficult to articulate.

But they have tried anyway, with the side result that many men self-censor

16

themselves to avoid being accused of sexual harassment, and institutions remove

valid expressions of art and learning to avoid “even the appearance of sexual

17

harassment.”14

18 86. In October 2016, a few months before joining the Department, Ms. Jackson stated in a

19 social media post that women who claimed that Donald Trump sexually harassed them were
20 “fake victims.”15 Ms. Jackson’s post came just days after a tape surfaced of President Trump
21 expressly bragging about sexually assaulting women.
22

23

24 13 Candice Jackson, Their Lives: The Women Targeted by the Clinton Machine (2005), at 138. 25 14 Id. 26 15 Annie Waldman, Pro Publica, DeVos Pick to Head Civil Rights Office Once Said She Faced
Discrimination for Being White (Apr. 14, 2017), https://www.propublica.org/article/devos27 candice-jackson-civil-rights-office-education-department.
28

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1 87. Similarly, and for example, in the past, Secretary DeVos has provided substantial

2 financial contributions—a form of speech—to FIRE, an organization that advocates for schools
3 to abdicate their responsibility to address sexual violence and instead defer entirely to law 4
enforcement.16 It asserts that the 2011 Dear Colleague Letter “eviscerated due process rights of 5
students and faculty accused of sexual misconduct on campus.”17 FIRE has previously litigated 6 7 against the Department to weaken Title IX’s protections, including by arguing that the
8 preponderance of the evidence standard, which is used in nearly all civil matters, is unfair to the

9 alleged perpetrator in a Title IX grievance proceeding.

10 88. Since they have assumed their current roles at the Department, Secretary DeVos’s and
11 Ms. Jackson’s official actions and statements preceding the 2017 Title IX policy reveal their
12 discriminatory motivation.
13 89. For example, Secretary DeVos actively solicited the views of those individuals and
14
15 groups that oppose robust Title IX protections and have questioned the veracity of survivors’

16 experiences. Shortly after assuming her role as Secretary, Secretary DeVos met with State

17 Representative Earl Ehrhart from Georgia—a notorious opponent of Title IX—to discuss, among 18

19

20 16 Benjamin Wermund, DeVos’ Donations Spark Questions About Her Stance On Sexual
21 Assault, Politico, Jan. 9, 2017, https://www.politico.com/story/2017/01/betsy-devos-education-

22

sexual-assault-233376, Alex Morey, Baylor Rape Controversy More Evidence Colleges Unequipped to Decide Sexual Assault Cases, Found. for Individual Rights in Educ. (FIRE), Sept.

23 14, 2015, https://www.thefire.org/baylor-rape-controversy-more-evidence-colleges-unequippedto-decide-sexual-assault-cases/.; Robert Shibley, Time to Call the Cops: Title IX Has Failed

24 Campus Sexual Assault, TIME, Dec. 1, 2014, http://time.com/3612667/campus-sexual-assault-

uva-rape-titleix/ (FIRE’s senior vice president arguing that campus responses “encourage[ ] 25 silence or the avoidance of law enforcement” in the wake of the Rolling Stone account of alleged

26 rape at a fraternity house at the University of Virginia). 17 https://www.thefire.org/dear-colleague-its-over-education-department-rescinds-controversial-
27 2011-letter/

28

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1 other topics, Title IX enforcement.18 Representative Ehrhart has pushed a state bill that would

2 require colleges to refer all sexual assault reports to the police, even against a victim’s expressed
3 wishes, a dangerous policy which would discourage reporting by victims. He has also questioned
4 women’s credibility on the experience of sexual assault accusing one woman of “utilizing a
5 victim’s status” for ulterior motives.19 Similarly, during the summer of 2017, Secretary DeVos
6
7 met with the National Coalition for Men, an organization that has published photos of women
8 who have made complaints of rape, calling them “false victims.”20 This Coalition has referred to

9 rape survivors as “anti-male.” 21

10 90. In contrast, only after repeated, collective requests from organizations representing the
11 interests of sexual harassment and assault survivors did Secretary DeVos agree to meet with
12 them. Plaintiffs, along with other organizations that advocate for Title IX’s protections for sexual
13 assault survivors, sent Secretary DeVos a letter in April 2017 urging her to consider the views of
14
15 sexual assault survivors and groups dedicated to their rights, as opposed to biased and extreme
16 views, such as those held by Mr. Ehrhart.22 While Department decisionmakers did eventually

17 meet with SurvJustice and others representing the views of sexual violence survivors, one

18

19

18 Kathryn Joyce, The Takedown of Title IX, N.Y. Times, Dec. 5, 2017, https://www.nytimes.com/2017/12/05/magazine/the-takedown-of-title-ix.html?_r=0 (“Ehrhart

20 came away from his meeting gratified that DeVos seemed to agree with him on the limited role that federal authorities should play. ‘She’s placing this back where it belongs,’ he told me, ‘in the

21 purview of the states.’”)

22 19 Letter from Nat’l Women’s Law Ctr, et al. to Elisbeth DeVos, Sec’y of Educ., Apr. 17, 2017, https://nwlc.org/wp-content/uploads/2017/04/April-17-2017-Letter-to-Secretary-DeVos.pdf.

23 20 Jessica Valenti, Why is Betsy DeVos enabling rape deniers?, The Guardian, July 14, 2017, 24 https://www.theguardian.com/commentisfree/2017/jul/14/betsy-devos-accused-rapists-meetings-
sexual-assault.

25 21 Tyler Kingkade, These Democratic Senators Are Blasting Betsy DeVos For Her Approach To 26 Campus Rape, Buzzfeed, July 12, 2017, https://www.buzzfeed.com/tylerkingkade/these-
democratic-senators-are-blasting-betsy-devos-for-her?utm_term=.sd2GyLb3M#.lvOz57wgB.

27 22 Letter from Nat’l Women’s Law Ctr, et al., supra note 19.

28

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1 survivors’ rights group, Know Your IX, was disinvited after its co-founders published an op-ed

2 critical of the Office for Civil Rights.
3 91. Although Title IX affords protections to all victims of discriminatory conduct on the 4
basis of sex, Secretary DeVos and Ms. Jackson’s statements have criticized the protections that 5
civil rights laws, such as Title IX, afford to women, continuing to base their statements on 6 7 stereotypes about college women and women who are survivors of sexual harassment, including
8 sexual assault.

9 92. In a July 2017 article in the New York Times, in which Ms. Jackson was quoted, she

10 publicly propounded discriminatory stereotypes of women who survive sexual assault.

11 Regarding investigations conducted by schools and universities to identify and remedy unlawful

12 sexual violence and other forms of harassment, she stated:
13

[In most investigations there’s] not even an accusation that these accused students

14

overrode the will of a young woman. Rather, the accusations—90 percent of

15

them—fall into the category of ‘we were both drunk,’ ‘we broke up, and six

months later I found myself under a Title IX investigation because she just

16

decided that our last sleeping together was not quite right.’23

17 93. In September 2017, Secretary DeVos gave a speech on campus sexual harassment,

18 including sexual violence, at George Mason University. In her remarks, she cited a number of
19 examples where students, particularly male students accused of sexual violence, were allegedly
20 treated unfairly by their schools. She used these examples to justify rescinding the 2011 Dear
21 Colleague Letter and 2014 Q&A.24 Yet these anecdotes involve problems that arose because
22

23

24

23 Erica L. Green & Sheryl Gay Stolberg, Policies Get a New Look as the Accused Get DeVos’s Ear, N.Y. Times, July 13, 2017 (emphasis added),

25 https://www.nytimes.com/2017/07/12/us/politics/campus-rape-betsy-devos-title-iv-educationtrump-candice-jackson.html.

26 24 See Elisabeth DeVos, Sec’y of the U.S. Dep’t of Educ., Remarks on Title IX Enforcement at

27 George Mason University (Sept. 7, 2017), https://www.ed.gov/news/speeches/secretary-devosprepared-remarks-title-ix-enforcement (“DeVos Remarks”).

28

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Case 3:18-cv-00535-JSC Document 1 Filed 01/25/18 Page 29 of 41
1 schools did not follow the then-existing guidance, and therefore do not support rescission of that
2 guidance.
3 94. Secretary DeVos’s September 2017 speech presented as equally problematic the harm 4
faced by sexual violence survivors and the harm faced by individuals who have been falsely 5
accused, despite a lack of evidence that the latter is a widespread problem extending beyond a 6 7 few occurrences, unlike the former.25 Rather than recognizing that false accusations are rare,
8 Secretary DeVos presented the problem of false accusations as rampant. On the contrary,
9 research shows that the prevalence of false allegations of sexual assault is very low—false
10 accusations regarding criminal sexual assault, for example, are estimated at 2-10 percent.26 11
95. Secretary DeVos also asserted that the loss of due process protections for alleged 12
perpetrators is a widespread problem on school campuses, mentioning “due process” ten times 13
during the speech. She also claimed that “the system established by the prior administration” was 14 15 responsible for creating “victims of a lack of due process”.27
16 96. Secretary DeVos also expressed doubt about the seriousness of sexual harassment claims,
17 saying, “[I]f everything is harassment, then nothing is.”28 This statement, among other things,
18 minimizes the full range of sexual harassment and its impact on women and girls, including 19
deprivation of their access to education. 20
97. Secretary DeVos’s and Ms. Jackson’s statements are consistent with and reveal their 21 22 discriminatory belief, based on gender stereotypes, that many girls and women who report sexual
23 25 See DeVos Remarks.
24 26 David Lisak, et al., False Allegations of Sexual Assault: An Analysis of Ten Years of Reported 25 Cases, 16(12) Violence Against Women 1318, 1330 (2010), https://icdv.idaho.gov/
conference/handouts/False-Allegations.pdf. 26 27 DeVos Remarks. 27 28 DeVos Remarks. 28
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Case 3:18-cv-00535-JSC Document 1 Filed 01/25/18 Page 30 of 41

1 harassment misunderstood a harmless romantic advance and that those who report sexual

2 violence often are either lying or have regret about a consensual sexual encounter.
3 98. This discriminatory mindset not only motivated decisionmakers at the Department, it 4
flows from the top of the Executive Branch. President Trump’s actions and statements reveal his 5
discriminatory and stereotyped views of women, and particularly women’s veracity regarding 6 7 claims of sexual harassment, including violence. For example, during his campaign for President,
8 Donald Trump called women who have made accusations of sexual harassment and assault

9 against him “phony accusers” who have made such reports to get “some free fame.” He has

10 called sexual harassment reports against him by women “a total setup” and that the women who

11 made those reports, “horrible.”29

12 99.
13

Mr. Trump has bragged about sexually assaulting women on audiotape, but continues to

deny the experiences of women and girls who have experienced sexual assault. He asserted that 14

15 “every woman lied when they came forward…” regarding alleged sexual harassment by him, and

16 that all of the women “liars will be sued after the election is over.” 30

17 100. This discriminatory and stereotyped view of women and girls has become formal White
18 House policy, as the White House has asserted in an official statement that at least sixteen
19 women who had accused the President of sexual harassment were lying.31 The Trump 20
Administration’s animus towards women gives license to and encourages Executive branch 21

22 29 Ryan T. Beckwith, Read Donald Trump’s Speech Attacking His Accusers, TIME, Oct. 14, 2016, http://time.com/4532181/donald-trump-north-carolina-accusers-speech-transcript/.
23 30 Ben Jacobs, Trump Uses Gettysburg Address to Threaten to Sue Sex Assault Accusers, The
24 Guardian, Oct. 22, 2016, https://www.theguardian.com/us-news/2016/oct/22/donald-trumpgettysburg-contract-with-america-sue-accusers-hillary-clinton.
25 31 John Wagner, All of the Women Who Have Accused Trump of Sexual Harassment Are Lying,
26 the White House Says, Wash. Post, Oct. 27, 2017, https://www.washingtonpost.com/news/postpolitics/wp/2017/10/27/all-of-the-women-who-have-accused-trump-of-sexual-harassment-are-
27 lying-the-white-house-says/?utm_term=.79b67a7a3a2b.
28

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1 decisionmakers who share the same discriminatory views to perpetuate those views in their

2 work.

3

2017 Title IX Policy

4 101. On September 22, 2017, the Department issued a new Dear Colleague Letter (“2017 Dear
5 Colleague Letter”), rescinding the 2011 Dear Colleague Letter and 2014 Q&A.32 The 2017 Dear
6

7 Colleague Letter also provides new information about how the Department will assess an

8 educational institution’s compliance with Title IX through a set of Questions and Answers.33

9 Together these documents set forth the Department’s revised Title IX policy (“2017 Title IX

10 policy”).
11 102. The 2017 Title IX policy departs dramatically from the 2011 and 2014 guidance
12 documents. The 2017 Title IX policy does not simply rescind the 2011 Dear Colleague Letter
13 and 2014 Q&A. Instead, it affirmatively contradicts Department policies that the 2017 Title IX
14
15 policy supposedly kept in effect, including the 2001 Guidance.

16 103. The 2017 Title IX policy, among other changes from existing law, imposes the following

17 requirements on schools, and weakens the following protections:

18

• prohibits educational institutions from issuing interim measures that minimize the

19 burden on complainants to modify their work and class schedules or housing assignments,
20 thereby increasing the risk that survivors of sexual harassment are isolated from their support
21

22 networks in the aftermath of their experience, see 2017 Q&A at 3;

23

• requires educational institutions issuing interim measures to provide such

24 measures to both parties thereby placing the burden on the complainant of sexual harassment to

25

26 32 See 2017 Dear Colleague Letter. 27 33 See 2017 Q&A.
28

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1 modify their access to education, and in turn increasing the risk that survivors of sexual

2 harassment are isolated from their support networks in the aftermath of their experience and
3 impeded in their ongoing access to educational benefits and opportunities, see 2017 Q&A at 3; 4
• requires educational institutions to consider the impact on a perpetrator’s access 5
to education, even after finding the individual responsible for sexual harassment or violence, in 6
7 reaching the decision on sanctions, id. at 6;

8

• eliminates the requirement that educational institutions, in determining whether

9 there is a hostile environment, consider the effect of off-campus conduct that does not involve a
10 program or activity of the institution, id. at 1, n. 3.
11 • eliminates the requirement that educational institutions provide appellate rights to
12 both parties, if they are provided at all, and instead permitting institutions to provide appellate
13
14 rights only to the alleged perpetrator, id. at 6-7;

15

• permits educational institutions not to provide interim measures to protect victims

16 of sexual harassment, including sexual violence from further harassment or violence during the

17 investigation into their complaint, see at 2–3;

18 • does not require educational institutions to timely resolve reports of sexual
19 harassment, including sexual violence, id. at 3;
20

21

• permits educational institutions to resolve claims of sexual assault through

22 mediation if both parties consent, notwithstanding, among other concerns, the likelihood that

23 mediation may retraumatize the victim, see id. at 4;

24

• permits educational institutions to use the “clear and convincing evidence” burden

25 of proof in adjudicating claims of sexual harassment, including sexual violence, rather than the
26 equitable standard of “preponderance of evidence,” id. at 5;
27

28

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1

• eliminates the caution against educational institutions relying on criminal

2 investigations as a substitute for their own independent investigations and determinations

3 regarding complaints of sexual harassment, including sexual violence, cf. 2014 Q&A at 27;
4 • eliminates the prohibition on permitting an alleged perpetrator to question a
5
complainant’s sexual history with individuals other than the alleged perpetrator, cf. id. at 31; 6

7

• eliminates the prohibition on educational institutions treating a current or previous

8 consensual dating or sexual relationship between parties as implying consent or precluding a

9 filing of sexual violence, cf. id. at 31;

10 • fails to provide instructions on how to respond when a complainant requests
11 confidentiality or requests that no investigation or disciplinary action be pursued, cf. id. at 18-22;
12
and 13

14

• eliminates the strong discouragement to educational institutions from permitting

15 alleged perpetrators to directly cross-examine complainants to avoid the perpetuation of a hostile

16 environment, cf. id.
17 104. The 2017 Title IX policy definitively changes expectations for recipient institutions, 18
including the expectations outlined in the longstanding 2001 Guidance, which (unlike the 2017 19
Title IX policy) was the product of notice and comment procedures and is still in in effect. For 20 21 example, the 2001 Guidance stated that in “alleged sexual violence, mediation will not be
22 appropriate even on a voluntary basis,” 2001 Guidance at 21, while the 2017 Title IX policy

23 permits explicitly mediation in all cases where the parties consent. 2017 Q&A at 4.

24 105. The 2017 Title IX policy also sets forth expectations and mandates on educational
25 institutions that are inconsistent with the statutory text of Title IX and its implementing
26 regulations, including but not limited to the following: providing for one-sided appellate rights
27

28

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1 favoring the accused; permitting schools to adopt a higher burden of proof—clear and
2 convincing evidence—for adjudicating complaints of sexual harassment, including sexual 3 violence; considering the impact that particular sanctions would have on a perpetrator’s access to 4
education after being found responsible for sexual harassment, including sexual violence, under 5
Title IX; and departing from prior policy requiring interim measures be issued to promptly 6 7 remedy the hostile environment for the complainant of sexual harassment. 8 106. Ironically, Defendants issued the 2017 Title IX policy and rescinded the 2011 and 2014
9 guidance documents without any opportunity for public notice and comment on the new policy
10 despite stating that the “era of rule by letter is over.” 34 The Department stated that it would “craft 11 a new Title IX regulation” after a period of notice and comment.35 Yet, in the four months that 12
have passed, the Department has not done so. 13
107. In promulgating the 2017 Title IX policy, Defendants deviated from normal 14 15 administrative processes and failed to provide reasoned justifications for the abrupt reversal in
16 policy—and frequently failed to acknowledge the reversal in policy.
17 108. The 2017 Title IX policy also relies on errors of fact and law. Among these, the 2017
18 Dear Colleague letter makes several claims about the effects of the rescinded guidance, stating, 19
for example that it had “led to the deprivation of rights for many students—both the accused 20
students denied fair process and victims denied an adequate resolution of their complaints.” 2017 21 22 Dear Colleague Letter at 1-2. On the contrary, the prior policy did not require schools to limit 23 due process or basic fairness protections for alleged perpetrators. While there are anecdotes of
24
25 34 Press Release, U.S. Dep’t of Educ., Dep’t of Educ. Issues New Interim Guidance on Campus 26 Sexual Misconduct, (Sept. 22, 2017), https://www.ed.gov/news/press-releases/department-
education-issues-new-interim-guidance-campus-sexual-misconduct. 27 35 Id. 28
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Case 3:18-cv-00535-JSC Document 1 Filed 01/25/18 Page 35 of 41
1 schools making errors in providing these procedural protections, such errors were neither
2 required by, nor the result of, the 2011 and 2014 guidance documents. 3 109. The 2011 and 2014 guidance documents clarified the requirements that Title IX imposes 4
on educational institutions to respond to complaints of sexual harassment and the protections it 5
requires for complainants. As such, they empowered students to make complaints of sexual 6 7 harassment, including sexual violence through campus complaint processes. The 2017 Title IX 8 policy does not acknowledge or otherwise account for the reliance interests that students, or
9 organizations that work with students, have in these protections. A student who filed a complaint
10 regarding sexual violence before the issuance of the 2017 Title IX policy would have been 11
assured that her educational institution should resolve the investigation within about sixty days, 12
and among other protections, she would not be cross-examined by the person who allegedly 13
assaulted her. For those students whose complaints were pending in the fall of 2017, no such 14 15 assurances remain.
16 110. Furthermore, the 2017 Title IX policy’s retrenchment on Title IX protections for victims
17 of sexual harassment, including sexual violence, in educational institutions is motivated by 18 stereotypical assumptions and overbroad generalizations about girls and women. Specifically, 19
decisionmakers at the Department hold the discriminatory views, as evidenced by Secretary 20
DeVos’s and Ms. Jackson’s statements, that (1) many girls and women who report sexual 21 22 harassment, including sexual violence, have misunderstood a harmless romantic advance and (2) 23 most girls and women who report sexual violence either are lying or have regret about a
24 consensual sexual encounter.
25
26
27
28
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1

The Devastating Effects of the Department’s 2017 Title IX Policy

2 111. The 2017 Title IX policy curtails important protections against sexual harassment. This

3 rollback has had devastating effects on students’ equal access to educational opportunity, which
4 is all too often thwarted on the basis of their sex.
5 112. Following the issuance of the 2017 Title IX policy, schools have stated their intention to
6 modify their practices. For example, after the Department closed an investigation into the
7
8 handling of campus sexual violence at the University of Houston, the university’s spokesman

9 stated that, in light of the current guidance, the university may make some changes to how it

10 adjudicates sexual misconduct violations to “better align with the [Department of Education’s]
11 expectations to how we ensure due process.”36 12
113. Following the issuance of the 2017 Title IX policy, numerous individuals who have been 13
the subject of sexual violence or harassment have expressed a hesitance or unwillingness to 14 15 report their incidents to their school authorities, citing the Department’s 2017 Title IX policy as
16 the reason for their hesitation or unwillingness.

17 114. These devastating consequences have overwhelmingly and disproportionately harmed

18 women and girls, among other populations that are disproportionately likely to be targeted for
19 sexual harassment and violence.
20 115. As outlined more fully in paragraphs 10-34, the consequences of the Department’s 2017
21 Title IX policy have harmed and continue to harm Plaintiffs. Indeed, Plaintiffs are organizations
22

23

24

36 Lindsay Ellis, Feds Close Title IX Investigation Into University of Houston, Chron, Oct. 4, 2017, http://www.chron.com/local/education/campus-chronicles/article/Feds-close-Title-IX-

25 investigation-into-University-12253555.php. The South Dakota Board of Regents has also passed interim Title IX sexual assault guidelines following the 2017 Title IX policy. See

26 Danielle Ferguson, South Dakota Board of Regents Passes Interim Title IX Sexual Assault

Guidelines, Argus Leader, Dec. 7, 2017, http://www.argusleader.com/ 27 story/news/2017/12/07/regents-pass-interim-title-ix-sexual-assault-guidelines/926445001/.

28

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1 that assist and counsel survivors of sexual harassment, including sexual violence. As a result of

2 the chilling effect that the Department’s change in policy has had and continues to have on
3 reporting sexual assault and other forms of sexual harassment, Plaintiffs are unable to meet their 4
missions of serving survivors of sexual violence and other forms of sexual harassment. Further, 5
Plaintiffs have had to expend resources over and above normal levels to combat underreporting 6 7 that has resulted from the Department’s change in policy, causing a diversion of resources away
8 from their other core programmatic activities.

9 116. The effects of the 2017 Title IX policy have also required Plaintiffs to expend resources

10 over and above their normal levels to combat confusion among survivors and educational

11 institutions and to educate both on the requirements of Title IX’s antidiscrimination provisions.
12 These resource expenditures have taken away from Plaintiffs’ other core programmatic activities,
13
causing a diversion of resources. 14

15

Claims for Relief

Count One

16

(Violation of the Administrative Procedure Act, 5 U.S.C. § 706)

17 117. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth herein.

18 118. The Administrative Procedure Act (“APA”) empowers this Court to set aside agency
19 action that is arbitrary, capricious, or contrary to law. It also requires an agency to provide a 20
sufficient explanation for its actions and to set aside actions and empowers this Court to set aside 21
actions that were undertaken without observance of procedure required by law. 22
23 119. The 2017 Title IX policy is the Department’s current policy for interpreting and
24 enforcing Title IX; it contains expectations and mandates for recipients that represents a shift

25 away from prior policy. Although labeled as interim, the 2017 Title IX policy is final agency

26 action for the purposes of the APA because it represents a conclusive shift in Department policy 27

28

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1 that governs the enforcement and interpretation of Title IX and it has no definite termination

2 date.
3 120. By issuing the 2017 Title IX policy, the Defendants have adopted a policy that is 4
arbitrary, capricious, and contrary to law. 5
121. Among other particulars, the 2017 Title IX policy arbitrarily and without reasoned 6 7 explanation eliminates protections designed to prevent a discriminatory educational environment.
8 It does so, for example, by permitting the use of mediation to resolve claims of sexual assault,

9 which is not only arbitrary and unexplained, but also directly contradicts the Department’s 2001

10 Guidance. It also fails to consider the reliance interests that students have in the continuation of
11 those protections.
12 122. In addition, the 2017 Title IX policy fails to articulate an adequate reason for, or in some
13 cases even acknowledge, its departure from prior guidance documents and other Department
14
15 interpretations of Title IX and its implementing regulations, including the 2014 Q&A, 2011 Dear

16 Colleague Letter, and 2001 Guidance.

17 123. Defendants’ proffered explanation for issuing the 2017 Title IX policy is based upon
18 mistakes of fact and law.
19 124. Defendants also acted in an arbitrary and capricious manner by implementing their 2017
20 Title IX policy without following the procedures required by law.
21 22 125. As a result of Defendants’ unlawful actions, Plaintiffs have been harmed and their
23 missions frustrated, as outlined more fully in paragraphs 10-34 above.

24

Count Two

(Ultra Vires Action) 25

26 126. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth herein.

27

28

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1 127. This Court has the power to set aside actions by the Executive Branch that are ultra vires

2 (i.e. without legal authority).
3 128. In adopting the 2017 Title IX policy and permitting recipients of federal funding to adopt 4
policies that disadvantage victims of sexual harassment, including sexual violence, and benefit 5
the alleged perpetrators, such as by permitting educational institutions to provide one-sided 6 7 appellate rights, and in considering factors unrelated to Title IX’s mandate in doing so,
8 Defendants have acted in excess of their legal authority.

9

Count Three

(Violation of the Equal Protection Guarantee of the Fifth Amendment) 10

11 129. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth herein.

12 130. The Due Process Clause of the Fifth Amendment to the United States Constitution

13 forbids the federal government from denying equal protection of the laws, including by

14 discriminating on the basis of sex.
15 131. In issuing the 2017 Title IX policy, Defendants were motivated, at least in part, by their 16
discriminatory—and baseless—gender stereotype that many women and girls lack credibility 17
with regard to sexual harassment. Such stereotype includes the perception that women and girls 18 19 who report sexual harassment misunderstood a harmless romantic advance and that those who
20 report sexual violence often are either lying or have regret about a consensual sexual encounter.

21 132. The statements and actions of Secretary DeVos and Ms. Jackson, as well as the

22 circumstances under which the 2017 Title IX policy change was issued, further demonstrate that
23 Defendants issued the 2017 Title IX policy knowing it would have a disparate impact on women,
24 who constitute the overwhelming majority of sexual harassment and assault survivors, by
25 reducing federal protections for victims of sexual harassment and assault. They took this action
26
27 not despite this impact on women, but because of it.

28

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1 133. Defendants, in issuing the 2017 Title IX policy based on gender stereotyped assumptions,

2 as evidenced by contemporary statements, departing from normal agency processes, acting with
3 the knowledge that the policy would disproportionately impact female students, and motivated 4
by that disproportionate impact, discriminated on the basis of sex in violation of the Due Process 5
Clause of the Fifth Amendment. 6 7 134. As a result of Defendants’ unlawful actions, Plaintiffs have been harmed and their
8 missions frustrated, as outlined more fully in paragraphs 10-34 above.

9 WHEREFORE, Plaintiffs pray that this Court:

10

1. Declare the Dear Colleague Letter and the Q&A issued in September 2017

11 unlawful;
12 2. Issue an injunction ordering Defendants to vacate the Dear Colleague
13
Letter and the Q&A issued in September 2017; 14

15

3. Award Plaintiffs costs, attorneys’ fees, and other disbursements for this

16

action; and

17

4. Grant any other relief this Court deems appropriate.

18 DEMAND FOR JURY TRIAL.

19

20 Respectfully submitted,

21

/s/_Jennifer A. Reisch________________ Jennifer A. Reisch (CA Bar No. 223671)

22 Equal Rights Advocates 1170 Market Street, Suite 700

23 San Francisco, CA 94102

Ph: (415) 621-0672 24 Fax: (415) 621-6744

25 Email: jreisch@equalrights.org

Date: January 25, 2018

26 Javier M. Guzman* Skye L. Perryman*
27 Robin Thurston*

28

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Case 3:18-cv-00535-JSC Document 1 Filed 01/25/18 Page 41 of 41

1 Karianne Jones*

Democracy Forward Foundation 2 1333 H St. NW

3

Washington, DC 20005 Ph: (202) 448-9090

4 Fax: (202) 701-1775 Emails: jguzman@democracyforward.org, sperryman@democracyforward.org,

5 rthurston@democracyforward.org, kjones@democracyforward.org

6 Leecia Welch (CA Bar No. 208741)

7

Alice Y. Abrokwa* National Center for Youth Law

8 405 14th Street, 15th Floor Oakland, CA 94612, and

9 1313 L Street, NW, Suite 130

Washington, DC 20005 10 Ph: (510) 835-8098

11 Fax: (510) 835-8099 Emails: lwelch@youthlaw.org, aabrokwa@youthlaw.org

12 Emily Martin*
13 Neena Chaudhry*
Sunu Chandy* 14 Alexandra Brodsky*
15 National Women’s Law Center 11 Dupont Circle, NW, Suite 800
16 Washington, DC 20036 Ph: (202) 588-5180
17 Fax: (202) 588-5185
Emails: emartin@nwlc.org, nchaudhry@nwlc.org, etang@nwlc.org, schandy@nwlc.org, 18 abrodsky@nwlc.org

19 *pro hac vice motions forthcoming
20 Counsel for Plaintiffs
21

22

23

24

25

26

27

28

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 Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 1 of 45

1 Jennifer A. Reisch (CA Bar No. 223671)
Equal Rights Advocates 2 1170 Market Street, Suite 700

3

San Francisco, CA 94102 Ph: (415) 896-0672

4 Fax: (415) 231-0011 Emails: jreish@equalrightsadvocates.org
5

Javier M. Guzman* 6 Skye L. Perryman*

7

Robin Thurston* Karianne Jones*

8 Democracy Forward Foundation 1333 H St. NW
9 Washington, DC 20005

Ph: (202) 448-9090 10 Fax: (202) 701-1775

11 Emails: jguzman@democracyforward.org, sperryman@democracyforward.org, rthurston@democracyforward.org, kjones@democracyforward.org

12 Leecia Welch (CA Bar No. 208741)
13 Alice Y. Abrokwa*

National Center for Youth Law 14 405 14th Street, 15th Floor

15 Oakland, CA 94612, and 1313 L Street, NW, Suite 130

16 Washington, DC 20005 Ph: (510) 835-8098
17 Fax: (510) 835-8099

Emails: lwelch@youthlaw.org, aabrokwa@youthlaw.org 18

19 Emily Martin* Neena Chaudhry*

20 Sunu Chandy*

Alexandra Brodsky* 21 National Women’s Law Center

22

11 Dupont Circle, NW, Suite 800 Washington, DC 20036

23 Ph: (202) 588-5180 Fax: (202) 588-5185

24 Emails: emartin@nwlc.org, nchaudhry@nwlc.org, schandy@nwlc.org, abrodsky@nwlc.org

25 *pro hac vice motions filed or forthcoming 26 Counsel for Plaintiffs 27

28

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Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 2 of 45

1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

2

SAN FRANCISCO DIVISION

3 SURVJUSTICE, INC.,

)

4 1015 15th Street NW, Suite 632 Washington, DC 20005,

) )

5 EQUAL RIGHTS ADVOCATES
6 1170 Market Street, Suite 700

) ) ) )

San Francisco, CA 94102, 7

) )

8 VICTIM RIGHTS LAW CENTER 520 SW Yamhill Street

) )

9 Portland, OR 97204,

) )

10

Plaintiffs,

) )

11 v.

) )

12 ELISABETH D. DEVOS, in her official
13 capacity as Secretary of Education,

) ) ) )

400 Maryland Avenue SW 14 Washington, DC 20202,

) )

15 CANDICE JACKSON, in her official

) )

16 17

capacity as Acting Assistant Secretary for )

Civil Rights, 400 Maryland Avenue SW

) ) )

Washington, DC 20202, 18

) )

19

U.S. DEPARTMENT OF EDUCATION, 400 Maryland Avenue SW

) )

20 Washington, DC 20202,

) )

21

Defendants.

) )

22

)

Case Number: 3:18-cv-00535-JSC
AMENDED COMPLAINT FOR INJUNCTIVE RELIEF DEMAND FOR JURY TRIAL

23 24 1.

Plaintiffs SurvJustice, Inc., Equal Rights Advocates, and Victim Rights Law Center bring

25 this action against Defendants U.S. Department of Education (“the Department” or “the

26 agency”), Secretary Elisabeth DeVos, and Acting Assistant Secretary for Civil Rights Candice 27 Jackson seeking vacatur of the Department’s new policy, as expressed in a Dear Colleague Letter 28

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Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 3 of 45

1 and Question and Answers guidance issued on September 22, 2017 (hereinafter jointly referred

2 to as the “2017 Title IX policy”), concerning Title IX of the Education Amendments of 1972

3 (“Title IX”).

4 2.

Over 45 years ago, Congress enacted Title IX to prohibit discrimination on the basis of

5

sex in educational programs and activities receiving federal financial assistance (hereinafter 6

7 “recipients” or “educational institutions”). This landmark civil rights law has helped fight sex

8 discrimination and promote equal educational access and opportunities for girls and women from

9 the classroom to the playing field.

10 3. Twenty years ago, acting on the basis of Supreme Court decisions and the recognition
11 that Title IX’s promise of equality is hollow if a student can be subjected to sexual harassment
12 with impunity, the Department issued its first guidance to educational institutions (both K-12
13 schools and institutions of higher education) on the standards that govern their response to sexual
14
15 harassment, a form of sex discrimination. Since then, through several successive guidance

16 materials issued under Administrations led by both political parties, the Department has

17 reaffirmed that Title IX’s prohibition on sex discrimination requires recipients to prevent and
18 redress sex and gender-based harassment. These policies recognize that students who experience
19 sexual harassment, including in its most extreme form, sexual violence, suffer not only
20 physically and emotionally, but also in their ability to participate in and benefit from educational
21 22 opportunities, on the basis of their sex.
23 4. The reaffirmation of Title IX’s protections continued until September 2017, when the

24 Department formally rescinded sexual violence guidance documents issued in 2011 and 2014—

25 purportedly because they were issued without notice and comment—and issued new conflicting 26

27

28

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1 policy documents to educational institutions—without notice and comment.1 The 2017 Title IX
2 policy is substantively unlawful and procedurally deficient. It conflicts with existing Title IX 3 requirements and fails to provide a reasoned justification for its reversal in position. It is also 4
based on a legally and factually mistaken view that earlier guidance limited due process 5
protections for students. And in issuing the 2017 Title IX policy, the Department failed to take 6 7 into account reliance interests that students, and organizations like Plaintiffs that work with
8 students, have in the protections set out in prior guidance documents.
9 5. The 2017 Title IX policy imposes significant changes on educational institutions and on
10 students. For example, whereas before, educational institutions were permitted to offer interim 11
measures, such as a revised class schedule or new housing assignment, to a student who had 12
complained of sexual harassment, now they are prohibited from issuing interim measures in a 13
manner that minimizes the burden for those students. The 2017 Title IX policy also relaxes 14 15 protections for sexual harassment victims, such as by permitting mediation between the parties,
16 even in cases of alleged sexual assault.
17 6. Underlying these changes and reversals are unfounded generalizations about women and
18 girls, particularly their credibility regarding reported experiences of sexual harassment, including 19
sexual violence. Myriad statements and actions by the Department’s leadership reveal this 20
discriminatory viewpoint. Thus, not only does the Department’s 2017 Title IX policy fail to meet 21 22 the reasoned decision and other requirements of the Administrative Procedure Act, it also 23 violates the Fifth Amendment’s equal protection guarantee. Plaintiffs therefore respectfully
24 request that the 2017 Title IX policy be vacated.
25 1 See U.S. Dep’t of Educ., Ltr. from Ass’t Sec’y Candice Jackson (Sept. 22, 2017),
26 https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf (“2017 Dear Colleague Letter”); U.S. Dep’t of Educ., Q&A on Campus Sexual Misconduct (Sept. 22, 2017),
27 https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf (“2017 Q&A”). 28
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1

Jurisdiction and Venue

2 7. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.
3 8. Venue is proper under 28 U.S.C. § 1391(e) because Equal Rights Advocates, a plaintiff,
4 resides in San Francisco, California.
5

6

Intradistrict Assignment

7 9. Filing is proper in this Judicial District because Equal Rights Advocates, a plaintiff, is
8 located in San Francisco, California.
9

10

Parties

11 10. Plaintiff SurvJustice, Inc., (“SurvJustice”) is a national not-for-profit organization based
12 in Washington, D.C., founded in 2014. SurvJustice’s mission is to increase the prospect of
13
14 justice for survivors of sexual violence. It pursues this goal through legal assistance, policy

15 advocacy, and institutional training. Through its efforts, SurvJustice aims to decrease the

16 prevalence of sexual violence throughout the country.

17 11. SurvJustice provides legal assistance to survivors of sexual violence in campus
18 proceedings, as well as civil and criminal legal systems. The majority of requests for legal 19
assistance that SurvJustice receives are from students at institutions of higher education. 20
SurvJustice staff help sexual violence survivors navigate the campus grievance process, 21 22 including reporting the violence, assisting survivors throughout any investigation, advising
23 survivors in campus hearings, helping survivors with any appeals, and helping survivors access

24 accommodations and services from their educational institutions. They frequently serve as

25 “advisors of choice” for college students in institutional disciplinary actions for cases of alleged
26 domestic violence, dating violence, sexual assault, or stalking, as provided for by the Clery Act
27

28

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1 as amended by the 2013 Violence Against Women Reauthorization Act, 20 U.S.C. §
2 1092(f)(8)(B)(iv)(II) (“Clery Act”). SurvJustice staff also represent survivors in civil litigation or 3 refer survivors to other qualified lawyers for such representation. SurvJustice also assists 4
survivors in reporting crimes to law enforcement, in advocating for prosecution, and by serving 5
as media representatives for victims and their families in high-profile criminal cases. 6 7 12. SurvJustice also trains educational institutions to prevent and address sexual violence 8 through compliance with federal law, enforcement of victims’ rights, and adoption of best
9 practices that include development of a culture that supports survivors and encourages “sexual
10 respect” (i.e., respect in sexual interactions and relationships). As part of this work, SurvJustice 11
has provided the annual training required by the Clery Act to various campus officials across the 12
country who investigate and adjudicate complaints of sexual assault, dating violence, domestic 13
violence, and stalking. 14 15 13. SurvJustice also engages in policy advocacy by providing technical assistance and advice
16 to legislators and policymakers on various state and federal legislation and policy efforts
17 regarding sexual violence, and working with changemakers within their communities on local 18 policy efforts, especially on college and university campuses. 19
14. SurvJustice brings this action on its own behalf because the challenged 2017 Title IX 20
policy (i) requires resource-intensive efforts that impede its daily operations; (ii) limits the 21 22 efficacy of available avenues of redress; (iii) increases the costs it bears in its work on behalf of 23 sexual violence survivors—for example by causing it to waive intake fees and reduce or waive
24 speaking fees; and (iv) otherwise directly conflicts with, impairs, and frustrates SurvJustice’s
25 organizational mission and priorities. 26
27
28
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1 15. As an organization that provides direct assistance and referral services to survivors of

2 sexual violence, SurvJustice’s core mission and daily operations have been and will continue to
3 be impeded by the chilling effect that the 2017 Title IX policy has had and continues to have on 4
the reporting of sexual violence. 5
16. Following and as a result of the 2017 Title IX policy change, SurvJustice experienced a 6
7 decrease in the number of sexual violence survivors seeking its services. This trend is borne out
8 by SurvJustice’s interactions with particular college and university students who have questioned

9 whether they should continue with their plans to report sexual violence given the uncertainty

10 regarding their legal protections and an anticipated lowered likelihood of success created by the

11 policy change.

12 17.
13

Following the 2017 Title IX policy change and as a result of the change, SurvJustice has

provided an increased number of student rights trainings at college and university campuses. 14

15 These additional trainings are necessary to respond to confusion created by the 2017 Title IX

16 policy among students about their legal rights. SurvJustice has also significantly reduced its price

17 for doing these trainings or agreed to provide them pro bono in response to increased need
18 resulting from the widespread uncertainty among students regarding their legal protections
19 following the 2017 Title IX policy change.
20 18. SurvJustice has also had to devote significant staff time to reviewing and understanding
21 22 the 2017 Title IX policy in order to advise clients in ongoing campus investigations and advocate
23 on their behalf. This shift in use of time has decreased the amount of time that SurvJustice has

24 available to provide legal services, including work on ongoing civil litigation.

25 19. The 2017 Title IX policy makes it more difficult for SurvJustice to accomplish its 26 mission of obtaining justice for survivors of sexual violence, both because it makes beneficial 27

28

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1 outcomes less likely for survivors and because even where those outcomes are still available,
2 success will take more staff time and effort. 3 20. For example, SurvJustice often advocates for schools to provide accommodations to its 4
clients, including during the pendency of an investigation, so that they can continue to learn 5
safely. SurvJustice often requests unilateral no-contact orders on its clients’ behalf but has 6 7 opposed mutual no-contact orders because they tend to be retaliatory.2 Yet the agency’s Title IX
8 policy change requires no-contact orders to be mutual, by prohibiting a school from making
9 interim measures available to only one party. The 2017 Title IX policy therefore impedes
10 SurvJustice’s mission by making it more difficult for SurvJustice to obtain interim measures that 11
are appropriate for survivors of sexual harassment, and ensure ongoing access to education for its 12
clients in accordance with its mission. 13
21. In addition, since the 2017 Title IX policy no longer identifies any benchmarks to 14 15 determine whether colleges and universities are meeting their obligation to resolve reports of
16 sexual violence in a timely fashion, SurvJustice has observed a trend in educational institutions
17 not responding at all, or not responding as promptly, to its clients’ complaints. This trend has
18 required SurvJustice to spend additional staff time and resources that it has not had to spend in 19
the past attempting to get school officials to respond to a survivor’s complaint of sexual violence. 20
22. The agency’s 2017 Title IX policy also makes it more difficult for SurvJustice to obtain 21 22 beneficial results for its clients due to, among other particulars, its endorsement of one-sided
23
24 25 2 SurvJustice argues that mutual no-contact orders are forms of retaliation when there is no basis
to place the order against victim-complainants other than the fact that they made a Title IX 26 complaint. In such instances, schools limit victims’ access to educational opportunities and
benefits as a direct result of the victims’ assertion of their federal rights and utilization of the 27 Title IX grievance process. 28
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1 appeal rights and a heightened standard of evidence that disfavors survivors and makes findings
2 of responsibility for sexual misconduct more onerous. 3 23. Plaintiff Equal Rights Advocates (“ERA”) is a national non-profit civil rights 4
organization based in San Francisco, California. Founded in 1974, ERA is dedicated to 5
protecting and expanding economic educational access and opportunities for women and girls. 6 7 24. ERA furthers its mission through engaging in public education efforts, as well as policy 8 reform and legislative advocacy; providing free legal information and counseling; and litigating
9 cases involving issues of gender discrimination in employment and education at all stages, from
10 the administrative agency process through and including the United States Supreme Court. ERA 11
has a long history of pursuing gender justice and equal opportunity for women and girls in 12
education and has litigated a number of important precedent-setting cases under Title IX, 13
including Doe v. Petaluma City School District, 54 F.3d 1447 (9th Cir. 1995), which held for the 14 15 first time that a school can be sued for sex discrimination under that law when it fails to address
16 one student’s serious harassment of another. ERA has participated as amicus curiae in scores of
17 state and federal cases involving the interpretation and application of procedural rules and civil 18 rights laws that have an impact on access to justice and economic opportunity for women and 19
girls. Through its Advice and Counseling program, ERA also provides free information and 20
assists individuals on matters relating to sex and gender discrimination at work and in school. As 21 22 part of its mission, ERA counsels and represents women who have been victims of sexual 23 harassment and/or sexual assault in matters pursuant to Title IX.
24 25. ERA brings this action on its own behalf because the challenged 2017 Title IX policy (i)
25 requires resource-intensive efforts that divert resources from its daily operations; (ii) limits the 26 efficacy of available avenues of redress to ERA’s clients and others it serves, (iii) increases the 27
28
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1 costs ERA bears in its work on behalf of student survivors of sexual violence; and (iv) otherwise
2 directly conflicts with, impairs, and frustrates ERA’s organizational mission and programmatic 3 priorities. 4
26. ERA has had to expend resources over and above what it would otherwise have expended 5
in order to counteract the effects of the 2017 Title IX policy change. For example, to counteract 6 7 the effects of the Title IX policy change, ERA has had to divert staff time and resources away 8 from core programmatic activities, such as litigating employment-related civil rights
9 enforcement cases and cases involving Title IX enforcement that do not relate to sexual violence
10 in schools, in order to step up its efforts to assist victims of sexual harassment and assault in 11
educational settings obtain redress. In particular, ERA has launched a national initiative to End 12
Sexual Violence in Education (“ESVE”) to narrow a justice gap for survivors of sexual violence 13
that is expanding rapidly given the unlawful actions Defendants have taken. Through the ESVE 14 15 Initiative, which was launched as a result of the Department’s 2017 Title IX policy change, ERA
16 is expanding its Advice & Counseling program, re-designing its intake process, and developing
17 new resources to better reach and serve individuals facing sexual harassment and violence in 18 schools. Additionally, as part of ESVE and in order to counteract the negative impact of policy 19
changes and rollbacks at the federal level on ERA’s clients and the communities it serves, ERA 20
is expending resources and diverting resources away from core programmatic activities to 21 22 establish a network of attorneys to provide pro bono counseling and other assistance to victims 23 of sexual harassment and assault in schools. It also is planning to build a new website where
24 advocates for survivors can find and share resources with each other.
25 27. Moreover, as an organization that has a longstanding history of providing direct 26 assistance and referral services to survivors of sexual violence, ERA is hampered in its ability to 27
28
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1 assist the victims of sexual harassment and assault that it represents and counsels in obtaining
2 equitable outcomes and redress for the harms they have suffered. In particular, and as discussed 3 more fully below, the 2017 Title IX policy change permits schools to offer asymmetric appellate 4
rights that disadvantage victims of sexual harassment, including sexual assault; permits schools 5
to evade responsibility for protecting students and the school community as a whole by resolving 6 7 claims of sexual assault privately through mediation; and rolls back other critical protections for 8 survivors that inhibit ERA’s ability to obtain redress and achieve results for its clients.
9 28. Plaintiff Victim Rights Law Center (“VRLC”) is a non-profit organization with
10 locations in Oregon and Massachusetts dedicated solely to serving the legal needs of rape and 11
sexual assault victims. VRLC’s mission is to provide legal representation to victims of rape and 12
sexual assault to help rebuild their lives and to promote a national movement committed to 13
seeking justice for every rape and sexual assault victim. 14 15 29. VRLC provides legal free, comprehensive services to help restore victims’ lives after
16 experiencing sexual violence, ensuring that survivors may stay in school; protecting their
17 privileged and confidential mental health, medical, and education records; preserving their 18 employment; maintaining safe housing; securing their immigration status; and swiftly accessing 19
victim compensation and other benefits. As part of its work, VRLC provides legal services 20
and/or facilitates the provision of legal services to individuals who have experienced sexual 21 22 violence and/or assault on elementary, secondary, and higher education campuses. With almost 23 50 percent of VRLC’s clients under the age of 24, a substantial portion of its practice is
24 providing education-related legal consultation and representation. VRLC attorneys represent
25 campus victims to communicate effectively with campus administrators, acquire interim 26 measures and accommodations to secure their education, prepare and attend disciplinary 27
28
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1 hearings, file appeals, and, if necessary, file complaints with the Department of Education,
2 Office of Civil Rights (“OCR”). 3 30. VRLC brings this action on its own behalf because, as detailed below, the challenged 4
Title IX policy concretely frustrates its mission and purpose through (among other things) (i) 5
requiring resource-intensive efforts that impede its daily operations, (ii) impairing its mission of 6 7 providing legal assistance to survivors of sexual assault and/or violence, (iii) limiting the efficacy 8 of available avenues of redress for the population it seeks to serve, (iv) requiring that resources
9 be diverted in order to combat the harmful effects of the Title IX policy, and (v) otherwise
10 directly conflicts with, impairs, and frustrates VRLC’s organizational mission and priorities. 11
31. The new 2017 Title IX policy has been devastating to VRLC’s mission and its 12
operational activities. For example, as result of the 2017 Title IX policy, sexual violence and 13
assault victims have expressed an unwillingness to report harassment and assault to campus 14 15 authorities, denying VRLC the ability to achieve its mission. VRLC saw an immediate chilling
16 effect after the Department issued its 2017 Dear Colleague letter and new Title IX policy. VRLC
17 has seen a decline in the number of sexual violence and assault survivors willing to pursue 18 justice through campus processes. The 2017 Title IX policy makes it less likely for VRLC 19
clients to engage in the campus process due to, among other particulars, its endorsement of one20
sided appeal rights and a heightened standard of evidence that disfavors survivors and makes 21 22 findings of responsibility for sexual assault and violence more onerous. Moreover, as a result of 23 the new Title IX policy, there has been a decline in the number of survivors willing to file
24 complaints with the Department of Education and/or otherwise communicating with the
25 Department of Education where there is already an investigation pending. Such declines in 26 reporting and hesitance to participate in the grievance process either through educational 27
28
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1 institutions or at the Department of Education directly threaten and frustrate VRLC’s mission
2 and purpose. 3 32. In addition to chilling and discouraging sexual violence and assault victims from availing 4
themselves of campus processes, the new Title IX policy has made it difficult for VRLC to 5
provide appropriate legal advice that helps its clients weigh their options with the best 6 7 information, leading to further reductions in reports of sexual violence and assault. 8 33. In cases where a survivor or victim may proceed with a claim (which is rare under the
9 new Title IX policy), VRLC’s mission remains frustrated given the nature of the Title IX policy.
10 In particular, the 2017 Title IX policy makes it more difficult for VRLC to accomplish its 11
mission of obtaining justice for survivors of sexual violence, both because it makes beneficial 12
outcomes less likely for survivors and because even where those outcomes are still available, 13
success will take more staff time and effort. In addition, since the 2017 Title IX policy no longer 14 15 requires colleges and universities to resolve reports of sexual violence in a timely fashion, VRLC
16 has observed a trend in educational institutions not responding or not responding as promptly to
17 its clients’ complaints. This trend has required VRLC to spend additional staff time and 18 resources that it has not had to spend in the past attempting to get school officials to respond. 19
34. VRLC has also had to devote staff time to reviewing and understanding the 2017 Title IX 20
policy in order to advise clients in ongoing campus investigations and advocate on their behalf. 21 22 This use of time has decreased the amount of time that it has available to provide legal services, 23 including work on ongoing civil litigation.
24 35. Defendant U.S. Department of Education (“the Department” or “the agency”) is a
25 federal agency headquartered in Washington, D.C. As discussed more fully below, the 26 Department implements Title IX through issuing regulations and guidance documents and is also 27
28
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1 tasked with administrative enforcement of Title IX, 20 U.S.C. § 1682. As a federal agency, the

2 Department is subject to the requirements of the Administrative Procedure Act and the United
3 States Constitution. 4
36. Defendant Elisabeth D. DeVos is the United States Secretary of Education. She is sued 5
in her official capacity. 6
7 37. Defendant Candice Jackson is the Acting Assistant Secretary for Civil Rights and

8 Deputy Assistant Secretary for Strategic Operations and Outreach for the Department. She is

9 sued in her official capacity.

10

11

Background

12 38. Sexual harassment, which is conduct, including but not limited to unwelcome sexual

13 advances, requests for sexual favors, and other unwelcome verbal, nonverbal, or physical

14 conduct of a sexual nature that targets someone because of their sex, including sexual assault or
15 other sexual violence (hereinafter “sexual harassment” or “sexual harassment, including sexual
16 violence”), is widespread in schools across the country, particularly in institutions of higher
17 18 education.
19 39. Sexual harassment disproportionately impacts women and girls. One in five women and

20 one in fourteen men experience sexual assault while in college.3 As the last Administration’s

21 Task Force to Protect Students from Sexual Assault concluded: “For female bisexual and 22

23 3 The White House, The Second Report of the White House Task Force to Protect Students from

24

Sexual Assault, 9 (Jan. 5, 2017), https://obamawhitehouse.archives.gov/sites/obamawhitehouse. archives.gov/files/images/Documents/1.4.17.VAW%20Event.TF%20Report.PDF. Similarly, a

25 2007 report by the National Criminal Justice Service found that one in five women were victims of sexual assault while in college and that approximately 6.1 percent of men were victims of

26 completed or attempted sexual assault during college. In high schools, during the 2007-2008

school year, there were 800 reported incidents of rape or attempted rape and 2,800 reported 27 incidents of other sexual batteries.

28

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1 transgender students, victimization rates are even higher: More than 1 in 4 transgender students

2 and more than 1 in 3 of bisexual students experience sexual assault while in college.”4
3 40. While sexual harassment on college campuses is more widely known, students of all ages 4
face sexual harassment, including sexual assault. A nationally representative survey of students 5
in grades 7-12 in 2011 concluded that nearly half of the students surveyed experienced some 6
7 form of sexual harassment that school year, and the majority said that the experience had a
8 negative effect on them.5 Of these students, “[g]irls were more likely than boys to be sexually

9 harassed, by a significant margin.”6 Children who experience sexual violence are nearly 14 times

10 more likely to experience rape or attempted rape in their first year of college, according to the

11 National Center for Victims of Crime.7

12 41.
13

Experiences of sexual violence harm students physically, psychologically, and

academically. Research shows that the effects of sexual assault in high school has consequences 14

15 that are “delayed and long lasting.”8 Sexually victimized students are more likely to drop classes,

16

17

18

19 4 Id.

20 5 Catherine Hill and Holly Kearl, Crossing The Line, Sexual Harassment at School, American

21

Association of University Women, 2 (2011), https://www.aauw.org/files/2013/02/Crossing-theLine-Sexual-Harassment-at-School.pdf.

22 6 Id.

23 7 Mark Keierleber, The Younger Victims of Sexual Violence in School, The Atlantic, Aug. 10, 2017, https://www.theatlantic.com/education/archive/2017/08/the-younger-victims-of-sexual-
24 violence-in-school/536418/.

25 8 Dana Bolger, Gender Violence Costs: School’s Financial Obligations Under Title IX, 125, Yale L.J. 2106, 2118 (2016), https://www.yalelawjournal.org/feature/gender-violence-costs-schools-
26 financial-obligations-under-title-ix#_ftnref72 (“Violence—and institutional indifference in its
wake—changes the courses of survivors’ lives, with educational and employment consequences 27 following them far into the future.”).

28

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1 change residences, and have lower GPAs, creating long-term consequences for professional

2 success and earning potential.9
3 42. Incidents of sexual harassment, including sexual violence, are often underreported,
4 especially on college campuses. For example, the Campus Climate Survey Validation Study
5 found that only 7 percent of students who indicated that they had been raped reported the rape to
6
7 school authorities.10

8 43. If unreported or inappropriately addressed, sexual harassment can continue unchecked

9 and create ongoing hostile environments for those who are the targets of such attacks.

10

11

Title IX of the Education Amendments of 1972

12 44. Signed into law by President Nixon, Title IX of the Education Amendments of 1972, 20

13 U.S.C. § 1681, prohibits discrimination on the basis of sex in any federally funded education

14 program or activity. When a recipient institution fails to comply with Title IX or to take action to
15 remedy its non-compliance, it can be subject to a range of enforcement actions, including the
16 loss of federal financial assistance. 20 U.S.C. § 1682.
17 18 45. The Supreme Court has squarely held that sexual harassment, which includes sexual
19 violence, is a form of sex discrimination that Title IX requires schools to address and

20 remediate.11

21

22 9 Victoria L. Banyard et al., Academic Correlates of Unwanted Sexual Contact, Intercourse,
23 Stalking, and Intimate Partner Violence: An Understudied but Important Consequence for 24 College Students, J. of Interpersonal Violence (June 21, 2017),
http://journals.sagepub.com/doi/10.1177/0886260517715022; 25 10 The White House, supra note 3 at 10.
26 11 See, e.g., Franklin v. Gwinnett Cnty Public Schools, 503 U.S. 60, 75 (1992) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986); Davis v. Monroe Cnty. Bd. of Educ., 526 U.S.
27 629 (1999); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998).
28

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1

The Department of Education’s Implementation and Enforcement of Title IX

2 46. The U.S. Department of Education is the lead agency charged with enforcing Title IX. It
3 may do so by establishing rules, regulations, and procedures that implement Title IX and define 4
the ways in which educational institutions comply with Title IX’s requirements. See 20 U.S.C. 5
§ 1682. 6
7 47. In 1975, the Department’s predecessor promulgated regulations to effectuate Title IX.

8 See 40 Fed. Reg. 24,128 (June 4, 1975). As amended, those regulations remain in effect today.

9 See 34 C.F.R. pt. 106. Among other things, the regulations incorporate Title IX’s

10 nondiscrimination mandate, see id. § 106.31(a), identify specific actions that constitute
11 discrimination, see id. § 106.31(b), and require assurances from recipients of federal financial
12 assistance that their programs and activities comply with regulatory requirements, see id.
13 § 106.4(a).
14
15 48. Recipients found to have discriminated on the basis of sex must “take such remedial

16 action as the Assistant Secretary [for Civil Rights] deems necessary to overcome the effects of

17 such discrimination.” Id. § 106.3(a).
18 49. The regulations require that recipients “adopt and publish grievance procedures providing 19
for prompt and equitable resolution” of student and employee complaints of sexual 20
discrimination, including sexual assault and other forms of sexual harassment. Id. § 106.8(b). 21 22 Such grievance procedures are designed to facilitate the reporting and resolution of complaints of
23 such sex discrimination so as to prevent and remedy hostile environments on campus.

24 50. These same regulations require that educational institutions “designate at least one

25 employee”—commonly known as a Title IX coordinator—“to coordinate its efforts to comply 26 with and carry out its responsibilities” under Title IX, including any investigation of any 27

28

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1 complaint of sexual discrimination, including sexual violence and other forms of sexual

2 harassment. Id. § 106.8(a).
3 51. In addition to promulgating Title IX’s implementing regulations, the Department has
4 issued a series of guidance documents that explain the obligations recipient schools and
5 universities are required to take under Title IX.
6

7 The 1997 Sexual Harassment Guidance

8 52.
9

The first of such guidance documents addressing educational institutions’ obligations to

address sexual harassment, titled Sexual Harassment Guidance: Harassment of Students by 10

11 School Employees, Other Students, or Third Parties, was published in 1997 after a public notice

12 and comment period and “extensive consultation with interested parties, [including] students,

13 teachers, school administrators, and researchers.” See 61 Fed. Reg. 42,728 (Aug. 16, 1996), 61

14 Fed. Reg. 52,172 (Oct. 4, 1996), and 62 Fed. Reg. 12,034, 12,035 (Mar. 13, 1997) (“1997
15 Guidance”). The 1997 Guidance provided information regarding the standards used by the
16 Department’s Office for Civil Rights (“OCR”) to investigate student complaints regarding
17 18 educational institutions’ responses to sexual harassment perpetuated by school employees, other
19 students (peers), or third parties.

20 53. The 1997 Guidance set forth principles for how educational institutions should address

21 sexual harassment in the educational setting. It noted that schools “are required by the Title IX
22 regulations to adopt and publish grievance procedures providing for prompt and equitable 23
resolution of sex discrimination complaints, including complaints of sexual harassment, and to 24
disseminate a policy against sex discrimination.” Id. at 12,040. 25 26 54. With respect to “informal mechanisms” for resolving complaints, the 1997 Guidance
27 explained that they may be used by mutual consent of the parties but that it was inappropriate for

28

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1 a complaining student to be required to work out the problem directly with the individual
2 accused of harassment and that mediation would be inappropriate even on a voluntary basis in 3 cases that involve sexual assault. Id. at 12,045. 4
55. The 1997 Guidance further explained that, during an investigation of a complaint, a 5
school may take appropriate interim and remedial measures, such as placing the involved 6 7 students in separate classes or in different housing arrangements. The touchstone for these 8 measures was that they “be designed to minimize, as much as possible, the burden on the student
9 who was harassed.” Id. at 12,043.
10 56. The 1997 Guidance also made clear that, beyond temporary interim accommodations, a 11
school “may be required to provide . . . services to the student who was harassed if necessary to 12
address the effects of the harassment on that student.” Such service might include tutoring and 13
mental health counseling. Id. 14 15 57. The 1997 Guidance set forth factors that OCR would consider in evaluating whether a
16 school’s grievance procedures were “prompt and equitable,” noting that “many schools …
17 provide an opportunity to appeal the findings or remedy or both.” Id. at 12,044. 18 58. The 1997 Guidance explained that other legal or adjudicatory processes could not 19
substitute for a school’s own processes. For example, where possible criminal conduct was 20
involved, a police investigation “may be useful in terms of fact-gathering,” but, “because legal 21 22 standards for criminal conduct are different, police investigations or reports may not be 23 determinative of whether harassment occurred under Title IX and do not relieve the school of its
24 duty to respond promptly.” Id. at 12,045.
25
26
27
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1

The 2001 Revised Sexual Harassment Guidance

2 59. Following the Supreme Court’s 1998 decision in Gebser v. Lago Vista Indep. Sch. Dist.,
3 524 U.S. 274 (1998) and its 1999 decision in Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 4
(1999), the Department issued revisions to the 1997 Guidance in 2001, entitled Revised Sexual 5
Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third 6
7 Parties. See 66 Fed. Reg. 5512 (Jan. 19, 2001).

8 60. The 2001 Guidance, which also followed a public notice and comment period, see 62

9 Fed. Reg. 66,092 (Nov. 2, 2000), reaffirms many of the principles set forth in the 1997

10 Guidance. It “explains how the requirements of the Title IX regulations apply to situations
11 involving sexual harassment of a student and outlines measures that schools should take to
12 ensure compliance [with Title IX and its implementing regulations].” 2001 Guidance at 4.
13 61. The 2001 Guidance reaffirms the requirement that educational institutions publish
14
15 grievance procedures “providing for prompt and equitable resolution of sex discrimination

16 complaints, including complaints of sexual harassment, and to disseminate a policy against sex

17 discrimination.” Id. at 14.
18 62. The 2001 Guidance further provides that “[o]nce a school has notice of possible sexual 19
harassment of students—whether carried out by employees, other students, or third parties—it 20
should take immediate and appropriate steps to investigate or otherwise determine what occurred 21 22 and take prompt and effective steps reasonably calculated to end any harassment, eliminate a
23 hostile environment if one has been created, and prevent harassment from occurring again.” Id.

24 at 15.

25 63. The 2001 Guidance specifies a number of factors that would be considered in 26 determining whether an educational institution’s grievance procedures were “prompt and 27

28

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1 equitable,” as required by Title IX and the Department’s implementing regulations, including, as

2 in the 1997 Guidance, the acknowledgment that many schools “provid[ed] an opportunity to
3 appeal the findings or remedy or both.” Id. at 20. 4
64. The 2001 Guidance also reaffirms that although informal resolution of complaints might 5
be appropriate in some cases, OCR had “frequently advised schools” that “mediation” or other 6
7 informal resolution would not be appropriate in the context of some forms of sexual harassment,
8 such as sexual assault, even on a voluntary basis. Id. at 21.

9 65. The 2001 Guidance also reiterates the importance of interim measures discussed in the

10 1997 Guidance, stressing that such measures “should be designed to minimize, as much as

11 possible, the burden on the student who was harassed.” Id. at 16.

12 66.
13

Like the 1997 Guidance, the 2001 Guidance made clear that, after an investigation has

concluded, a school “may be required to provide. . . services to the student who was harassed if 14

15 necessary to address the effects of the harassment on that student.” Id. at 16-17.

16 67. The 2001 Guidance cautions schools, as did the 1997 Guidance, about relying on police

17 or insurance company investigations as a substitute for their own processes, again emphasizing
18 the different purposes and legal standards applicable in those third-party investigations. Id. at 21.
19 68. Finally, the 2001 Guidance notes that both employees and students of public schools and
20 universities are entitled to certain Constitutional due process protections, and that the rights
21 22 established under Title IX must be interpreted consistent with any federally guaranteed due
23 process rights involved in a complaint proceeding. The guidance instructed, however, that

24 recipients should ensure that “steps to accord due process rights do not restrict or unnecessarily

25 delay the protections provided by Title IX to the complainant.” Id. at 22. 26

27

28

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1

The 2011 Dear Colleague Letter and 2014 Q&A Document

2 69. Even with the Department’s enforcement and guidance activities, sexual harassment,
3 including sexual violence, has remained a pervasive problem on campuses and in schools across 4
the country. 5
70. In the wake of these ongoing challenges, educational institutions solicited assistance from 6
7 the Department of Education in further understanding their obligations under Title IX in regard

8 to sexual harassment, particularly sexual violence. Thereafter, in 2011, the Department issued a

9 “Dear Colleague Letter on Sexual Violence” and, in 2014, a set of Questions and Answers to

10 respond to additional concerns raised by schools and students.12
11 71. Citing the “deeply troubling” statistics concerning sexual violence on campuses, the 2011
12 Dear Colleague Letter provided clarity on how schools should address peer-on-peer sexual
13 harassment, including sexual violence, as well as steps that schools could take to respond in
14
15 accordance with the Department’s regulations and 2001 Guidance.

16 72. The 2011 Dear Colleague Letter reiterated, consistent with the 2001 Guidance, the

17 importance of schools offering services to survivors, such as tutoring and mental health care, to

18 ensure that they can continue to learn in the wake of sexual harassment, including sexual
19 violence. 2011 Dear Colleague Letter at 15-17. It noted, again consistent with the 2001
20 Guidance, that necessary accommodations may include interim remedies to protect the
21
22 complainant during the investigation. Id. at 15.
23 73. As in the 2001 Guidance, the 2011 Dear Colleague Letter discussed what constitutes a

24 prompt and equitable adjudication. The 2011 Dear Colleague Letter also made clear that Title IX

25 12 See U.S. Dep’t of Educ., Ltr. from Ass’t Sec’y Russlynn Ali (Apr. 4, 2011),
26 https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf (“2011 Dear Colleague Letter”); U.S. Dep’t of Educ., Questions and Answers on Title IX and Sexual Violence (Apr. 29,
27 2014), https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (“2014 Q&A”).
28

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1 requires schools to provide complainants and respondents equal rights and opportunities
2 throughout an investigation and any appellate process. Id. at 12. 3 74. The 2011 Dear Colleague Letter also discouraged schools from allowing a complainant 4
and alleged perpetrator to directly cross-examine each other. As the guidance explained, 5
“[a]llowing an alleged perpetrator to question an alleged victim directly may be traumatic or 6 7 intimidating, thereby possibly escalating or perpetuating a hostile environment.” Id. at 12. 8 75. The 2011 Dear Colleague Letter reiterated the ongoing policy expressed in the 2001
9 Guidance that mediation is an inappropriate way to resolve complaints of sexual violence. Id. at
10 8. 11
76. The 2011 Dear Colleague Letter also discussed, in response to questions that school 12
administrators had posed, the burden of proof that recipient schools should use in investigating 13
complaints of sexual assault. The 2011 Dear Colleague Letter explained that, in investigating 14 15 Title IX complaints, OCR reviews a school’s grievance procedures to determine whether a
16 school uses preponderance of the evidence as the complainant’s burden of proof. It explained
17 that this burden appropriately reflected the burden used in litigation under Title VII of the Civil 18 Rights Act of 1964, to which courts have looked in construing Title IX, as well as the burden 19
used by OCR in investigating Title IX complaints against recipients of federal funding. Id. at 11. 20
77. Also consistent with the 2001 Guidance, the 2011 Dear Colleague Letter reiterated that 21 22 public and state-supported schools must provide due process protections to an alleged 23 perpetrator. Id. at 12.
24 78. In 2014, the Department issued further clarifications consistent with its previously issued
25 guidance in response to questions that it received from schools and colleges in the form of a 26 Questions and Answers document (“2014 Q&A”). The 2014 Q&A provided examples of 27
28
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1 proactive efforts schools could take to prevent sexual violence and remedies schools could use to
2 end such conduct, prevent its recurrence, and address its effects. 3 79. Among other things, the 2014 Q&A further discussed Title IX’s mandate that schools 4
take steps to ensure equal access to educational programs and activities, including by protecting 5
a complainant with interim measures pending resolution of a complaint. Such measures should 6 7 allow the complainant to avoid contact with the alleged perpetrator and “to change academic and 8 extracurricular activities or his or her living, transportation, dining, and working situations as
9 appropriate.” 2014 Q&A at 32. This requirement is consistent with the 2001 Guidance’s
10 emphasis on Title IX’s mandate to take immediate steps once a complaint is filed to eliminate 11
any hostile environment and prevent harassment from occurring again. Id. at 32-33; see also 12
2001 Guidance at 12. 13
80. The 2014 Q&A also emphasized that schools should provide the same rights and 14 15 opportunities to complainants and respondents. 2014 Q&A at 26.
16 81. The 2011 Dear Colleague Letter and the 2014 Q&A were not the subject of a public
17 notice and comment process because they did not reflect any policy change, but rather reminded 18 schools of longstanding statutory and regulatory obligations to address sexual harassment, 19
including sexual violence, while providing more details and examples of how to do so. Both 20
documents were the product of the Department’s consideration of the standards that OCR had 21 22 relied on in dozens of investigations and reflected the input of students, faculty, administrators, 23 staff, attorneys, Sexual Assault Response Teams (“SARTs”), counselors, student advocates,
24 medical personnel, parents, law enforcement, prosecutors, and campus police.
25
26
27
28
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1

The Trump Administration’s Change in Title IX Policy

2 82. Following his inauguration, President Trump appointed Secretary DeVos to lead the
3 Department of Education. In April 2017, Secretary DeVos selected Candice Jackson to serve as 4
Deputy Assistant Secretary and to lead OCR as Acting Assistant Secretary for Civil Rights. 5
83. Secretary DeVos and Ms. Jackson have repeatedly criticized the protections that Title IX 6
7 affords to women and other survivors of sexual harassment, including sexual violence. Much of

8 that criticism has been based on discriminatory stereotypes and unfounded generalizations about

9 female college students in general and female victims of sexual violence in particular.

10 84. For example, Ms. Jackson has repeatedly criticized core civil rights achievements, such
11 as legal protections against sexual harassment. For example, in a book she published in 2005,
12 Ms. Jackson stated that laws to combat sexual harassment gloss over “the reality that unwanted
13 sexual advances are difficult to define.”13
14
15 85. Ms. Jackson regularly questions the veracity of sexual harassment and assault claims

16 made by women, stating, for example:

17

18

[I]t wasn’t enough that women are not legally forbidden anymore from getting an education and entering the workforce. Feminists and other leftists thought the

19

problem of workplace sexual harassment needed a legal remedy. Since sexual

harassment is such a nebulous experience, defined so subjectively and turning on

20

the perceptions of the people involved, laws banning it are difficult to articulate.

But they have tried anyway, with the side result that many men self-censor

21

themselves to avoid being accused of sexual harassment, and institutions remove

22

valid expressions of art and learning to avoid “even the appearance of sexual harassment.”14

23 86. In October 2016, a few months before joining the Department, Ms. Jackson stated in a
24
social media post that women who claimed that Donald Trump sexually harassed them were 25

26 13 Candice Jackson, Their Lives: The Women Targeted by the Clinton Machine (2005), at 138. 27 14 Id.
28

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1 “fake victims.”15 Ms. Jackson’s post came just days after a tape surfaced of President Trump

2 expressly bragging about sexually assaulting women.
3 87. Similarly, and for example, in the past, Secretary DeVos has provided substantial 4
financial contributions—a form of speech—to FIRE, an organization that advocates for schools 5
to abdicate their responsibility to address sexual violence and instead defer entirely to law 6 7 enforcement.16 It asserts that the 2011 Dear Colleague Letter “eviscerated due process rights of
8 students and faculty accused of sexual misconduct on campus.”17 FIRE has previously litigated

9 against the Department to weaken Title IX’s protections, including by arguing that the

10 preponderance of the evidence standard, which is used in nearly all civil matters, is unfair to the

11 alleged perpetrator in a Title IX grievance proceeding.

12 88.
13

Since they have assumed their current roles at the Department, Secretary DeVos’s and

Ms. Jackson’s official actions and statements preceding the 2017 Title IX policy reveal their 14

15 discriminatory motivation.

16 89. For example, Secretary DeVos actively solicited the views of those individuals and

17 groups that oppose robust Title IX protections and have questioned the veracity of survivors’

18

15 Annie Waldman, Pro Publica, DeVos Pick to Head Civil Rights Office Once Said She Faced 19 Discrimination for Being White (Apr. 14, 2017), https://www.propublica.org/article/devos-

20 candice-jackson-civil-rights-office-education-department.

16 Benjamin Wermund, DeVos’ Donations Spark Questions About Her Stance On Sexual 21 Assault, Politico, Jan. 9, 2017, https://www.politico.com/story/2017/01/betsy-devos-education-

22

sexual-assault-233376, Alex Morey, Baylor Rape Controversy More Evidence Colleges Unequipped to Decide Sexual Assault Cases, Found. for Individual Rights in Educ. (FIRE), Sept.

23 14, 2015, https://www.thefire.org/baylor-rape-controversy-more-evidence-colleges-unequippedto-decide-sexual-assault-cases/.; Robert Shibley, Time to Call the Cops: Title IX Has Failed

24 Campus Sexual Assault, TIME, Dec. 1, 2014, http://time.com/3612667/campus-sexual-assault-

uva-rape-titleix/ (FIRE’s senior vice president arguing that campus responses “encourage[ ] 25 silence or the avoidance of law enforcement” in the wake of the Rolling Stone account of alleged

26 rape at a fraternity house at the University of Virginia).

17 https://www.thefire.org/dear-colleague-its-over-education-department-rescinds-controversial27 2011-letter/.

28

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1 experiences. Shortly after assuming her role as Secretary, Secretary DeVos met with State

2 Representative Earl Ehrhart from Georgia—a notorious opponent of Title IX—to discuss, among
3 other topics, Title IX enforcement.18 Representative Ehrhart has pushed a state bill that would 4
require colleges to refer all sexual assault reports to the police, even against a victim’s expressed 5
wishes, a dangerous policy that would discourage reporting by victims. He has also questioned 6
7 women’s credibility on the experience of sexual assault accusing one woman of “utilizing a
8 victim’s status” for ulterior motives.19 Similarly, during the summer of 2017, Secretary DeVos

9 met with the National Coalition for Men, an organization that has published photos of women

10 who have made complaints of rape, calling them “false victims.”20 This Coalition has referred to

11 rape survivors as “anti-male.” 21

12 90.
13

In contrast, only after repeated, collective requests from organizations representing the

interests of sexual harassment and assault survivors did Secretary DeVos agree to meet with 14

15 them. Plaintiffs, along with other organizations that advocate for Title IX’s protections for sexual

16 assault survivors, sent Secretary DeVos a letter in April 2017 urging her to consider the views of

17 sexual assault survivors and groups dedicated to their rights, as opposed to biased and extreme

18

19 18 Kathryn Joyce, The Takedown of Title IX, N.Y. Times, Dec. 5, 2017,
20 https://www.nytimes.com/2017/12/05/magazine/the-takedown-of-title-ix.html?_r=0 (“Ehrhart

21

came away from his meeting gratified that DeVos seemed to agree with him on the limited role that federal authorities should play. ‘She’s placing this back where it belongs,’ he told me, ‘in the

22 purview of the states.’”)

19 Letter from Nat’l Women’s Law Ctr, et al. to Elisbeth DeVos, Sec’y of Educ., Apr. 17, 2017, 23 https://nwlc.org/wp-content/uploads/2017/04/April-17-2017-Letter-to-Secretary-DeVos.pdf.

24 20 Jessica Valenti, Why is Betsy DeVos enabling rape deniers?, The Guardian, July 14, 2017, https://www.theguardian.com/commentisfree/2017/jul/14/betsy-devos-accused-rapists-meetings-
25 sexual-assault.

26 21 Tyler Kingkade, These Democratic Senators Are Blasting Betsy DeVos For Her Approach To Campus Rape, Buzzfeed, July 12, 2017, https://www.buzzfeed.com/tylerkingkade/these-
27 democratic-senators-are-blasting-betsy-devos-for-her?utm_term=.sd2GyLb3M#.lvOz57wgB.

28

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1 views, such as those held by Mr. Ehrhart.22 While Department decisionmakers did eventually

2 meet with SurvJustice and others representing the views of sexual violence survivors, one
3 survivors’ rights group, Know Your IX, was disinvited after its co-founders published an op-ed 4
critical of the Office for Civil Rights. 5
91. Although Title IX affords protections to all victims of discriminatory conduct on the 6
7 basis of sex, Secretary DeVos and Ms. Jackson’s statements have criticized the protections that

8 civil rights laws, such as Title IX, afford to women, continuing to base their statements on

9 stereotypes about college women and women who are survivors of sexual harassment, including

10 sexual assault.
11 92. In a July 2017 article in the New York Times, in which Ms. Jackson was quoted, she
12 publicly propounded discriminatory stereotypes of women who survive sexual assault.
13 Regarding investigations conducted by schools and universities to identify and remedy unlawful
14
15 sexual violence and other forms of harassment, she stated:

16

[In most investigations there’s] not even an accusation that these accused students

17

overrode the will of a young woman. Rather, the accusations—90 percent of

18

them—fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just

19

decided that our last sleeping together was not quite right.’23

20 93. In September 2017, Secretary DeVos gave a speech on campus sexual harassment,

21 including sexual violence, at George Mason University. In her remarks, she cited a number of
22 examples where students, particularly male students accused of sexual violence, were allegedly
23 treated unfairly by their schools. She used these examples to justify rescinding the 2011 Dear
24 22 Letter from Nat’l Women’s Law Ctr, et al., supra note 19.
25 23 Erica L. Green & Sheryl Gay Stolberg, Policies Get a New Look as the Accused Get DeVos’s
26 Ear, N.Y. Times, July 13, 2017 (emphasis added), https://www.nytimes.com/2017/07/12/us/politics/campus-rape-betsy-devos-title-iv-education-
27 trump-candice-jackson.html.
28

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1 Colleague Letter and 2014 Q&A.24 Yet these anecdotes involve problems that arose because
2 schools did not follow the then-existing guidance, and therefore do not support rescission of that 3 guidance. Moreover, many of the anecdotes used by Secretary DeVos in her speech were 4
misleading and/or untrue, in that they recounted supposed facts that the parties to the incident 5
disputed. 6 7 94. Secretary DeVos’s September 2017 speech presented as equally problematic the harm
8 faced by sexual violence survivors and the harm faced by individuals who have been falsely
9 accused, despite a lack of evidence that the latter is a widespread problem extending beyond a
10 few occurrences, unlike the former.25 Rather than recognizing that false accusations are rare, 11
Secretary DeVos presented the problem of false accusations as rampant. On the contrary, 12
research shows that the prevalence of false allegations of sexual assault is very low—false 13
accusations regarding criminal sexual assault, for example, are estimated at 2-10 percent.26 14 15 95. Secretary DeVos also asserted that the loss of due process protections for alleged
16 perpetrators is a widespread problem on school campuses, mentioning “due process” ten times
17 during the speech. She also claimed that “the system established by the prior administration” was
18 responsible for creating “victims of a lack of due process”.27 19
20
21
22 24 See Elisabeth DeVos, Sec’y of the U.S. Dep’t of Educ., Remarks on Title IX Enforcement at
23 George Mason University (Sept. 7, 2017), https://www.ed.gov/news/speeches/secretary-devosprepared-remarks-title-ix-enforcement (“DeVos Remarks”).
24 25 See DeVos Remarks.
25 26 David Lisak, et al., False Allegations of Sexual Assault: An Analysis of Ten Years of Reported 26 Cases, 16(12) Violence Against Women 1318, 1330 (2010), https://icdv.idaho.gov/
conference/handouts/False-Allegations.pdf. 27 27 DeVos Remarks. 28
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1 96. Secretary DeVos also expressed doubt about the seriousness of sexual harassment claims,
2 saying, “[I]f everything is harassment, then nothing is.”28 This statement, among other things, 3 minimizes the full range of sexual harassment and its impact on women and girls, including 4
deprivation of their access to education. 5
97. Secretary DeVos’s and Ms. Jackson’s statements are consistent with and reveal their 6 7 discriminatory belief, based on gender stereotypes, that many girls and women who report sexual 8 harassment misunderstood a harmless romantic advance and that those who report sexual
9 violence often are either lying or have regret about a consensual sexual encounter.
10 98. Other politically appointed Department of Education officials have similar doubts about 11
the veracity of sexual harassment and violence claims. For example, Adam Kissel, Deputy 12
Assistant Secretary for Higher Education Programs, has criticized affirmative consent policies 13
adopted on college campuses through his Twitter accounting, stating in February 2017 that “The 14 15 new OCR [Office of Civil Rights, Department of Education] will start to fix this.” Mr. Kissel
16 has also criticized the “preponderance of evidence” standard because it will lead, in his view, to
17 “more guilty verdicts,” apparently referring to campus findings of responsibility. He has also 18 criticized antidiscrimination policies preventing sexual harassment. 19
99. This discriminatory mindset has not only motivated decisionmakers at the Department, it 20
flows from the top of the Executive Branch. President Trump’s actions and statements reveal his 21 22 discriminatory and stereotyped views of women, and particularly women’s veracity regarding 23 claims of sexual harassment, including violence. For example, during his campaign for President,
24 Donald Trump called women who have made accusations of sexual harassment and assault
25 against him “phony accusers” who have made such reports to get “some free fame.” He has 26
27 28 DeVos Remarks. 28
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1 called sexual harassment reports against him by women “a total setup” and the women who
2 made those reports, “horrible.”29
3 100. Mr. Trump has bragged about sexually assaulting women on audiotape, but continues to 4
deny the experiences of women and girls who have experienced sexual assault. He asserted that 5
“every woman lied when they came forward…” regarding alleged sexual harassment by him, and 6 7 that all of the women “liars will be sued after the election is over.” 30
8 101. This discriminatory and stereotyped view of women and girls has become formal White
9 House policy, as the White House has asserted in an official statement that at least 16 women
10 who had accused the President of sexual harassment were lying.31 11
102. The Administration’s disbelief of women and girls and disregard for gender-based 12
violence is also evident from the employment of multiple White House staff members who have 13
been accused of abusing their female partners. It has been widely reported that now-former 14 15 White House staff secretary Rob Porter was elevated within the White House despite law
16 enforcement investigations concerning multiple reports of his abuse of women.32 After the
17 reports of Mr. Porter’s abuse were made public, President Trump has defended Mr. Porter, and
18
19 29 Ryan T. Beckwith, Read Donald Trump’s Speech Attacking His Accusers, TIME, Oct. 14, 2016, http://time.com/4532181/donald-trump-north-carolina-accusers-speech-transcript/.
20 30 Ben Jacobs, Trump Uses Gettysburg Address to Threaten to Sue Sex Assault Accusers, The 21 Guardian, Oct. 22, 2016, https://www.theguardian.com/us-news/2016/oct/22/donald-trump-
gettysburg-contract-with-america-sue-accusers-hillary-clinton. 22 31 John Wagner, All of the Women Who Have Accused Trump of Sexual Harassment Are Lying, 23 the White House Says, Wash. Post, Oct. 27, 2017, https://www.washingtonpost.com/news/post-
politics/wp/2017/10/27/all-of-the-women-who-have-accused-trump-of-sexual-harassment-are24 lying-the-white-house-says/?utm_term=.79b67a7a3a2b. 25 32 Mr. Porter’s reported abuse of women is well documented; in 2010, a court issued a protective
order against him, finding “reasonable grounds” to believe that Mr. Porter committed domestic 26 abuse towards his wife at the time, Jennifer Willoughby, and “probable danger” of the abuse
occurring. Reports and evidence concerning Mr. Porter’s abuse of women are among the things 27 that prevented Mr. Porter from obtaining a permanent security clearance.
28
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1 White House Chief of Staff John Kelly stated that Mr. Porter is a man of “integrity.” Mr.

2 Porter’s resignation was followed by the resignation of another senior White House official,
3 David Sorensen, who also has been accused of gender-based violence. 4
103. Following these resignations, Mr. Trump issued a statement in the form of a 5
tweet: “Peoples [sic] lives are being shattered and destroyed by a mere allegation,” he wrote. 6
7 “There is no recovery for someone falsely accused—life and career are gone. Is there no
8 such thing any longer as Due Process?”33

9 104. The Trump Administration’s animus towards women gives license to and encourages

10 Executive branch decisionmakers who share the same discriminatory views to perpetuate those
11 views in their work.
12

13

2017 Title IX Policy

14 105. On September 22, 2017, the Department issued a new Dear Colleague Letter (“2017 Dear
15 Colleague Letter”), rescinding the 2011 Dear Colleague Letter and 2014 Q&A.34 The 2017 Dear
16 Colleague Letter also provides new information about how the Department will assess an
17 educational institution’s compliance with Title IX through a set of Questions and Answers.35
18
19 Together, these documents set forth the Department’s revised Title IX policy (“2017 Title IX

20 policy”).

21 106. The 2017 Title IX policy departs dramatically from the 2011 and 2014 guidance 22 documents. The 2017 Title IX policy does not simply rescind the 2011 Dear Colleague Letter 23

24
25 33 Donald Trump (@realDonaldTrump), Twitter (Feb. 10, 2018), https://twitter.com/ realDonaldTrump/status/962348831789797381.
26 34 See 2017 Dear Colleague Letter. 27 35 See 2017 Q&A.
28

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1 and 2014 Q&A. Instead, it affirmatively contradicts Department policies that the 2017 Title IX

2 policy supposedly kept in effect, including the 2001 Guidance.
3 107. The 2017 Title IX policy, among other changes from existing law, imposes the following
4 requirements on schools that weaken protections for sexual harassment survivors:
5

6

• prohibits educational institutions from issuing interim measures that minimize the

7 burden on complainants to modify their work and class schedules or housing assignments,
8 thereby increasing the risk that survivors of sexual harassment are isolated from their support
9

10 networks in the aftermath of their experience, see 2017 Q&A at 3;

11

• requires educational institutions issuing interim measures to provide such

12 measures to both parties thereby placing the burden on the complainant of sexual harassment to

13 modify their access to education, and in turn increasing the risk that survivors of sexual
14 harassment are isolated from their support networks in the aftermath of their experience and 15
impeded in their ongoing access to educational benefits and opportunities, see id.; 16
• requires educational institutions to consider the impact on a perpetrator’s access 17
18 to education, even after finding the individual responsible for sexual harassment or violence, in

19 reaching a decision on sanctions, id. at 6;

20

• eliminates the requirement that educational institutions consider the effect of off-

21 campus conduct that does not involve a program or activity of the institution in determining 22
whether there is a hostile environment, id. at 1, n. 3. 23
• eliminates the requirement that educational institutions provide appellate rights to 24
25 both parties, if they are provided at all, and instead permits institutions to provide appellate rights

26 only to the alleged perpetrator, id. at 6-7;

27

28

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1

• permits educational institutions not to provide interim measures to protect victims

2 of sexual harassment, including sexual violence from further harassment or violence during the

3 investigation into their complaint, see at 2-3;
4 • does not require educational institutions to timely resolve reports of sexual
5
6 harassment, including sexual violence, id. at 3;

7

• permits educational institutions to resolve claims of sexual assault through

8 mediation if both parties consent, notwithstanding, among other concerns, the likelihood that

9 mediation may retraumatize the victim, see id. at 4;

10 • permits educational institutions to use the “clear and convincing evidence” burden
11 of proof in adjudicating claims of sexual harassment, including sexual violence, rather than the
12
equitable standard of “preponderance of evidence,” id. at 5; 13

14

• eliminates the caution against educational institutions relying on criminal

15 investigations as a substitute for their own independent investigations and determinations

16 regarding complaints of sexual harassment, including sexual violence, cf. 2014 Q&A at 27;

17

• eliminates the prohibition on permitting an alleged perpetrator to question a

18 complainant’s sexual history with individuals other than the alleged perpetrator, cf. id. at 31;
19

• eliminates the prohibition on educational institutions treating a current or previous 20

21 consensual dating or sexual relationship between parties as implying consent or precluding a

22 filing of sexual violence, cf. id. at 31;

23

• fails to provide instructions on how to respond when a complainant requests

24 confidentiality or requests that no investigation or disciplinary action be pursued, cf. id. at 18-22;
25 and
26

27

28

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Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 35 of 45

1

• eliminates the strong discouragement to educational institutions from permitting

2 alleged perpetrators to directly cross-examine complainants to avoid the perpetuation of a hostile
3 environment, cf. id.
4

5 108. The 2017 Title IX policy definitively changes expectations for recipient institutions,

6 including the expectations outlined in the longstanding 2001 Guidance, which (unlike the 2017
7 Title IX policy) was the product of notice and comment procedures and remains in effect. For
8 example, the 2001 Guidance stated that in “alleged sexual violence, mediation will not be
9 10 appropriate even on a voluntary basis,” 2001 Guidance at 21, while the 2017 Title IX policy
11 permits explicitly mediation in all cases where the parties consent. 2017 Q&A at 4.

12 109. The 2017 Title IX policy also sets forth expectations and mandates on educational

13 institutions that are inconsistent with the statutory text of Title IX and its implementing
14 regulations, including, but not limited to, the following: providing for one-sided appellate rights 15
favoring the accused; permitting schools to adopt a higher burden of proof—clear and 16
convincing evidence—for adjudicating complaints of sexual harassment, including sexual 17 18 violence; considering the impact that particular sanctions would have on a perpetrator’s access to
19 education after being found responsible for sexual harassment, including sexual violence, under

20 Title IX; and departing from prior policy requiring interim measures be issued to promptly

21 remedy the hostile environment for the complainant of sexual harassment.
22 110. Ironically, Defendants issued the 2017 Title IX policy and rescinded the 2011 and 2014
23 guidance documents without any opportunity for public notice and comment on the new policy
24

25

26

27

28

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1 despite stating that the “era of rule by letter is over.” 36 The Department stated that it would “craft
2 a new Title IX regulation” after a period of notice and comment.37 Yet, in the five months that 3 have passed, the Department has not done so. 4
111. In promulgating the 2017 Title IX policy, Defendants deviated from normal 5
administrative processes and failed to provide reasoned justifications for the abrupt reversal in 6 7 policy—and frequently failed to acknowledge the reversal in policy.
8 112. The 2017 Title IX policy also relies on errors of fact and law. Among these, the 2017
9 Dear Colleague letter makes several claims about the effects of the rescinded guidance, stating,
10 for example, that it had “led to the deprivation of rights for many students—both the accused 11
students denied fair process and victims denied an adequate resolution of their complaints.” 2017 12
Dear Colleague Letter at 1-2. On the contrary, the prior policy did not require schools to limit 13
due process or basic fairness protections for alleged perpetrators. While there are anecdotes of 14 15 schools making errors in providing these procedural protections, such errors were neither
16 required by, nor the result of, the 2011 and 2014 guidance documents.
17 113. The 2011 and 2014 guidance documents clarified the requirements that Title IX imposes
18 on educational institutions to respond to complaints of sexual harassment and the protections it 19
requires for complainants. As such, they empowered students to make complaints of sexual 20
harassment, including sexual violence through campus complaint processes. The 2017 Title IX 21 22 policy does not acknowledge or otherwise account for the reliance interests that students, or 23 organizations that work with students, have in these protections. A student who filed a complaint
24 regarding sexual violence before the issuance of the 2017 Title IX policy would have been
25 36 Press Release, U.S. Dep’t of Educ., Dep’t of Educ. Issues New Interim Guidance on Campus 26 Sexual Misconduct, (Sept. 22, 2017), https://www.ed.gov/news/press-releases/department-
education-issues-new-interim-guidance-campus-sexual-misconduct. 27 37 Id. 28
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Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 37 of 45
1 assured that her educational institution should resolve the investigation within about sixty days,
2 and among other protections, she would not be cross-examined by the person who allegedly 3 assaulted her. For those students whose complaints were pending in the fall of 2017, no such 4
assurances remain. 5
114. Furthermore, the 2017 Title IX policy’s retrenchment on Title IX protections for victims 6 7 of sexual harassment, including sexual violence, in educational institutions is motivated by
8 stereotypical assumptions and overbroad generalizations about girls and women. Specifically,
9 decisionmakers at the Department hold the discriminatory views, as evidenced by Secretary
10 DeVos’s and Ms. Jackson’s statements, that (1) many girls and women who report sexual 11
harassment, including sexual violence, have misunderstood a harmless romantic advance and (2) 12
most girls and women who report sexual violence either are lying or have regret about a 13
consensual sexual encounter. 14
15 The Devastating Effects of the Department’s 2017 Title IX Policy
16 115. The 2017 Title IX policy curtails important protections against sexual harassment. This
17 18 rollback has had devastating effects on students’ equal access to educational opportunity, which 19 is all too often thwarted on the basis of their sex.
20 116. Following the issuance of the 2017 Title IX policy, schools have modified and/or stated
21 their intention to modify their practices. For example, in the weeks following the issuance of the 22 2017 Title IX policy, the South Dakota Board of Regents proposed “emergency revisions” to its 23
Title IX policy that “were required to comply with the Interim Guidance [i.e., 2017 Title IX 24
policy] issued on September 22, 2017.”38 The Board identified “revisions … to comply with the 25
26 38 South Dakota Board of Regents, Minutes of the Meeting, Oct. 3-5, 2017, at
27 20, https://www.sdbor.edu/the-board/minutes/Documents/BOR_Minutes_102017.pdf 28
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Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 38 of 45

1 requirements contained in the Interim Guidance.”39 It ultimately made a host of changes to its

2 policy to “align with” and “follow[]” the Interim Guidance. 40 The changes made by South
3 Dakota Board of Regents include, among others, modifications to its policy on interim measures,
4 sanctions, and mediation to “explicitly incorporate language contained in the interim
5 guidance.”41 As another example, following issuance of the 2017 Title IX policy and after the
6
7 Department closed an investigation into the handling of campus sexual violence at the University

8 of Houston, the university’s spokesman stated that, in light of the current guidance, the

9 university may make some changes to how it adjudicates sexual misconduct violations to “better

10 align with the [Department of Education’s] expectations to how we ensure due process.”42 In
11 addition, the University of Michigan has changed its Title IX policy to adopt the option of
12 mediation between an accused student and a survivor in cases of sexual assault. This new
13

14

15

16

17 39 South Dakota Board of Regents, Title IX Interim Guidance, Oct. 3-5, 2017, at 1, 18 https://www.sdbor.edu/the-
board/agendaitems/2014AgendaItems/2017%20Agenda%20Items/October0317/5_O_BOR1017. 19 pdf.

20 40 South Dakota Board of Regents, Minutes of the Meeting, Dec. 5-7, 2017, at 30, https://www.sdbor.edu/the-board/minutes/Documents/BOR_Minutes_1217_DRAFT.pdf

21 41 South Dakota Board of Regents, Title IX Interim Guidance, Revisions to Board Policies, Dec.

22

5-7, 2017, at 1, https://www.sdbor.edu/theboard/agendaitems/2014AgendaItems/2017%20Agenda%20Items/December17/7_E_BOR1217_

23 REVISED.pdf; see also Danielle Ferguson, South Dakota Board of Regents Passes Interim Title IX Sexual Assault Guidelines, Argus Leader, Dec. 7, 2017, http://www.argusleader.com/

24 story/news/2017/12/07/regents-pass-interim-title-ix-sexual-assault-guidelines/926445001/ (South

Dakota State University vice president of student affairs stating that some of the changes were 25 “substantive” but claiming that “most aren’t”).

26 42 Lindsay Ellis, Feds Close Title IX Investigation Into University of Houston, Chron, Oct. 4, 2017, http://www.chron.com/local/education/campus-chronicles/article/Feds-close-Title-IX-
27 investigation-into-University-12253555.php.

28

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Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 39 of 45

1 University of Michigan policy resulted from the Title IX policy change.43 Other universities are

2 following suit either in policy and/or in practice by recommending mediation in cases of sexual
3 assault.
4 117. Following the issuance of the 2017 Title IX policy, universities have also changed their
5 policies in such a way that could delay resolution of reports of sexual misconduct, including
6
7 sexual assault.44

8 118. Following the issuance of the 2017 Title IX policy, the Department has begun to modify

9 and limit its ongoing investigations and analysis of University responses to reports of sexual

10 misconduct, including sexual violence, to conform to the new Title IX policy.
11 119. Following the issuance of the 2017 Title IX policy, numerous individuals who have been
12 the subject of sexual violence or harassment have expressed a hesitance or unwillingness to
13 report their incidents to their school authorities, citing the Department’s 2017 Title IX policy as
14
15 the reason for their hesitation or unwillingness.

16

17

18 43Jeremy Bauer-Wolf, Mediating Sexual Assault, Inside Higher Ed, Feb. 20,

19 2018, https://www.insidehighered.com/news/2018/02/20/university-michigan-will-now-allowmediation-some-sexual-assault-cases; Rick Fitzgerald, U-M Revises Student Sexual and Gender-

20 Based Misconduct Policy, The Univ. Record, Feb. 1, 2018, https://record.umich.edu/articles/u-

m-revises-student-sexual-gender-based-misconduct-policy (University of Michigan Public 21 Affairs Office explains that “[t]he change [regarding mediation] also reflects the most recent

22 guidance from the U.S. Department of Education's Office for Civil Rights.”).

44 Press Release, Grand Valley State Univ., Update on the Impact of Interim Q&A Related to 23 Title IX (Oct. 2, 2017), https://www.gvsu.edu/inclusion/module-news-

24

view.htm?storyId=B4C32E26-0CC1-44BC-CCF964C4D07C10C3&siteModuleId=6D5DCE61CC95-4B12-A9C94F3632A6F3DD (Grand Valley State University announcing it will remove

25 its 60-day time frame for investigations.); Kara Coleman, Auburn University Re-Evaluating Title IX Policies and Procedures, Feb. 9, 2018, www.oanow.com/news/auburnuniversity/auburn-

26 university-re-evaluating-title-ix-policies-and-procedures/article_16b90e14-ecf7-507c-a390-

85c0ad88e538.html (Auburn University removed its 60-day time frame sometime “before 27 Christmas” and now allows for “reasonable time,” which can be “three or four months.”).

28

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Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 40 of 45
1 120. These devastating consequences have overwhelmingly and disproportionately harmed
2 women and girls, among other populations that are disproportionately likely to be targeted for 3 sexual harassment and violence. 4
121. As outlined more fully in paragraphs 10-34, the consequences of the Department’s 2017 5
Title IX policy have harmed and continue to harm Plaintiffs. Indeed, Plaintiffs are organizations 6 7 that assist and counsel survivors of sexual harassment, including sexual violence. As a result of 8 the chilling effect that the Department’s change in policy has had and continues to have on
9 reporting sexual assault and other forms of sexual harassment, Plaintiffs are unable to meet their 10 missions of serving survivors of sexual violence and other forms of sexual harassment. Further, 11
Plaintiffs have had to expend resources over and above normal levels to combat underreporting 12
that has resulted from the Department’s change in policy, causing a diversion of resources away 13
from their other core programmatic activities. 14 15 122. The effects of the 2017 Title IX policy have also required Plaintiffs to expend resources 16 over and above their normal levels to combat confusion among survivors and educational
17 institutions and to educate both on the requirements of Title IX’s antidiscrimination provisions. 18 These resource expenditures have taken away from Plaintiffs’ other core programmatic activities, 19
causing a diversion of resources. 20
21
22
23
24
25
26
27
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Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 41 of 45

1

Claims for Relief

2

3

Count One (Violation of the Administrative Procedure Act, 5 U.S.C. § 706)

4 123. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth herein.
5
124. The Administrative Procedure Act (“APA”) empowers this Court to set aside agency 6

7 action that is arbitrary, capricious, or contrary to law. It also requires an agency to provide a

8 sufficient explanation for its actions and to set aside actions and empowers this Court to set aside

9 actions that were undertaken without observance of procedure required by law.

10 125. The 2017 Title IX policy is the Department’s current policy for interpreting and
11 enforcing Title IX; it contains expectations and mandates for recipients that represents a shift
12 away from prior policy. Although labeled as interim, the 2017 Title IX policy is final agency
13 14 action for the purposes of the APA because it represents a conclusive shift in Department policy
15 that governs the enforcement and interpretation of Title IX and it has no definite termination

16 date.

17 126. By issuing the 2017 Title IX policy, the Defendants have adopted a policy that is
18 arbitrary, capricious, and contrary to law. 19
127. Among other particulars, the 2017 Title IX policy arbitrarily and without reasoned 20
explanation eliminates protections designed to prevent a discriminatory educational environment. 21 22 It does so, for example, by permitting the use of mediation to resolve claims of sexual assault,
23 which is not only arbitrary and unexplained, but also directly contradicts the Department’s 2001

24 Guidance. It also fails to consider the reliance interests that students have in the continuation of

25 those protections. 26

27

28

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Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 42 of 45

1 128. In addition, the 2017 Title IX policy fails to articulate an adequate reason for, or in some

2 cases even acknowledge, its departure from prior guidance documents and other Department
3 interpretations of Title IX and its implementing regulations, including the 2014 Q&A, 2011 Dear 4
Colleague Letter, and 2001 Guidance. 5
129. Defendants’ proffered explanation for issuing the 2017 Title IX policy is based upon 6
7 mistakes of fact and law.
8 130. Defendants also acted in an arbitrary and capricious manner by implementing their 2017

9 Title IX policy without following the procedures required by law.

10 131. As a result of Defendants’ unlawful actions, Plaintiffs have been harmed and their
11 missions frustrated, as outlined more fully in paragraphs 10-34 above.
12

13

Count Two

(Ultra Vires Action) 14

15 132. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth herein.

16 133. This Court has the power to set aside actions by the Executive Branch that are ultra vires

17 (i.e., without legal authority).
18 134. In adopting the 2017 Title IX policy and permitting recipients of federal funding to adopt 19
policies that disadvantage victims of sexual harassment, including sexual violence, and benefit 20
the alleged perpetrators, such as by permitting educational institutions to provide one-sided 21 22 appellate rights, and in considering factors unrelated to Title IX’s mandate in doing so,
23 Defendants have acted in excess of their legal authority.

24

25

26

27

28

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Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 43 of 45

1

Count Three

(Violation of the Equal Protection Guarantee of the Fifth Amendment) 2

3 135. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth herein.

4 136. The Due Process Clause of the Fifth Amendment to the United States Constitution

5 forbids the federal government from denying equal protection of the laws, including by

6 discriminating on the basis of sex.
7 137. In issuing the 2017 Title IX policy, Defendants were motivated, at least in part, by their
8 discriminatory—and baseless—gender stereotype that many women and girls lack credibility
9 with regard to sexual harassment. Such stereotype includes the perception that women and girls
10
11 who report sexual harassment misunderstood a harmless romantic advance and that those who

12 report sexual violence often are either lying or have regret about a consensual sexual encounter.

13 138. The statements and actions of Secretary DeVos and Ms. Jackson, as well as the

14 circumstances under which the 2017 Title IX policy change was issued, further demonstrate that
15 Defendants issued the 2017 Title IX policy knowing it would have a disparate impact on women,
16 who constitute the overwhelming majority of sexual harassment and assault survivors, by
17 18 reducing federal protections for victims of sexual harassment and assault. They took this action
19 not despite this impact on women, but because of it.

20 139. Defendants, in issuing the 2017 Title IX policy based on gender stereotyped assumptions,

21 as evidenced by contemporary statements, departing from normal agency processes, acting with
22 the knowledge that the policy would disproportionately impact female students, and motivated 23
by that disproportionate impact, discriminated on the basis of sex in violation of the Due Process 24
Clause of the Fifth Amendment. 25 26 140. As a result of Defendants’ unlawful actions, Plaintiffs have been harmed and their
27 missions frustrated, as outlined more fully in paragraphs 10-34 above.

28

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Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 44 of 45

1 WHEREFORE, Plaintiffs pray that this Court:

2

1. Declare the Dear Colleague Letter and the Q&A issued in September 2017 unlawful;

3

2. Issue an injunction ordering Defendants to vacate the Dear Colleague Letter and the

4 Q&A issued in September 2017;
5
3. Award Plaintiffs costs, attorneys’ fees, and other disbursements for this action; and 6

7

4. Grant any other relief this Court deems appropriate.

8 DEMAND FOR JURY TRIAL.

9 Respectfully submitted,

10 /s/ Alice Abrokwa

11 Alice Y. Abrokwa*

Leecia Welch (CA Bar No. 208741) 12 National Center for Youth Law

13

405 14th Street, 15th Floor Oakland, CA 94612, and

14 1313 L Street, NW, Suite 130 Washington, DC 20005

15 Ph: (510) 835-8098

Fax: (510) 835-8099 16 Emails: lwelch@youthlaw.org, aabrokwa@youthlaw.org

17 Jennifer A. Reisch (CA Bar No. 223671) 18 Equal Rights Advocates
1170 Market Street, Suite 700 19 San Francisco, CA 94102
Ph: (415) 896-0672 20 Fax: (415) 231-0011
21 Email: jreish@equalrightsadvocates.org

22 Javier M. Guzman* Skye L. Perryman*
23 Robin Thurston*
Karianne Jones* 24 Democracy Forward Foundation
25 1333 H St. NW Washington, DC 20005
26 Ph: (202) 448-9090 Fax: (202) 701-1775
27

Date: February 21, 2018

28

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Case 3:18-cv-00535-JSC Document 23 Filed 02/21/18 Page 45 of 45

1 Emails: jguzman@democracyforward.org, sperryman@democracyforward.org,
rthurston@democracyforward.org, kjones@democracyforward.org 2

3

Emily Martin* Neena Chaudhry*

4 Sunu Chandy* Alexandra Brodsky*

5 National Women’s Law Center

11 Dupont Circle, NW, Suite 800 6 Washington, DC 20036

7

Ph: (202) 588-5180 Fax: (202) 588-5185

8 Emails: emartin@nwlc.org, nchaudhry@nwlc.org, etang@nwlc.org, schandy@nwlc.org, abrodsky@nwlc.org

9

*pro hac vice motions filed or forthcoming 10

11 Counsel for Plaintiffs

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case 3:18-cv-00535-JSC Document 81 Filed 10/01/18 Page 1 of 21

United States District Court Northern District of California

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

NORTHERN DISTRICT OF CALIFORNIA

8 9 SURVJUSTICE INC., et al.,

Case No.18-cv-00535-JSC

10

Plaintiffs,

v. 11

ELISABETH D. DEVOS, et al., 12

Defendants. 13

ORDER RE: DEFENDANTS’ MOTION TO DISMISS
Re: Dkt. No. 40

14

15

Plaintiffs SurvJustice, Inc., Equal Rights Advocates, and Victim Rights Law Center

16 (collectively, “Plaintiffs”) bring this action for injunctive relief against Defendants U.S.

17 Department of Education (“the Department”), Secretary Elisabeth D. DeVos, and Acting Assistant 18 Secretary for Civil Rights Kenneth L. Marcus (collectively, “Defendants”).1 Plaintiffs seek to

19 vacate the Department’s new policy regarding enforcement of Title IX of the Education

20 Amendments of 1972, as detailed in Department guidance issued on September 22, 2017. (Dkt. 21 No. 23 at ¶ 1.)2 Defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(1) for

22 lack of standing and 12(b)(6) for failure to state claims upon which relief can be granted. (Dkt.

23 No. 40.) After carefully considering the arguments and briefing submitted, and having had the

24 benefit of oral argument on July 19, 2018, the Court grants Defendants’ motion to dismiss. The

25 allegations are insufficient to show standing to bring an equal protection claim, the 2017 Guidance

26

27

1 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 18 & 36.)

28

2 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents.

Case 3:18-cv-00535-JSC Document 81 Filed 10/01/18 Page 2 of 21

United States District Court Northern District of California

1 does not constitute final agency action for purposes of the APA claim, and the allegations do not

2 plausibly suggest that Defendants acted outside their authority for the ultra vires claim.

3

BACKGROUND

4 I. Factual Background

5

A. Title IX Generally

6

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, prohibits any

7 educational program or activity that receives federal funding from discriminating on the basis of

8 sex. 20 U.S.C. § 1681(a). Sexual harassment, including sexual violence, is a form of sex

9 discrimination that educational institutions must address and remedy under Title IX. (Dkt No. 23

10 at ¶ 45) (citing Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999); Gebser v. Lago Vista

11 Indep. Sch. Dist., 524 U.S. 274 (1998); Franklin v. Gwinnett Cty. Pub. Schools, 503 U.S. 60, 75

12 (1992)). The Department, acting through its Office of Civil Rights is “the administrative agency

13 charged with administering Title IX.” Neal v. Bd. of Trs. of California State Univ., 198 F.3d 763,

14 770 (9th Cir. 1999) (internal quotation marks and citation omitted). This responsibility includes

15 “establishing rules, regulations, and procedures that implement Title IX and define the ways in

16 which educational institutions comply with Title IX’s requirements.” (Dkt No. 23 at ¶ 46.) The

17 Office of Civil Rights requires recipients of federal funding to “adopt and publish grievance

18 procedures providing for prompt and equitable resolution of student and employee complaints

19 alleging any action” prohibited under Title IX. 34 C.F.R. § 106.8(b).

20

B. The 1997 Guidance

21

In 1997, the Department published its first guidance (“1997 Guidance”) “addressing

22 educational institutions’ obligations to address sexual harassment” following “a public notice and

23 comment period” that included “‘extensive consultation with interested parties.’” (Dkt. No. 23 at

24 ¶ 52) (quoting Sexual Harassment Guidance, 62 Fed. Reg. 12,034, 12035 (Mar. 13, 1997)). The

25 1997 Guidance established “principles for how educational institutions should address sexual

26 harassment” and “provided information regarding the standards used by the Department’s Office

27 of Civil Rights to investigate student complaints regarding educational institutions’ responses to

28 sexual harassment.” (Id. at ¶¶ 52-53.) The 1997 Guidance provided that “‘informal mechanisms’ 2

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United States District Court Northern District of California

1 for resolving complaints,” such as mediation, “may be used by mutual consent of the parties but

2 that it was inappropriate for a complaining student to be required to work out the problem directly

3 with the individual accused of harassment.” (Id. at ¶ 54.) Furthermore, in cases involving sexual

4 assault, “mediation would be inappropriate even on a voluntary basis.” (Id.) Schools

5 investigating complaints were permitted to “take appropriate interim and remedial measures . . .

6 designed to minimize, as much as possible, the burden on the student who was harassed.” (Id. at ¶

7 55.) The 1997 Guidance also explained that police investigations into the alleged criminal

8 conduct of an accused perpetrator could not substitute for a school utilizing its own sexual

9 harassment processes. (Id. at ¶ 58.)

10

C. The 2001 Guidance

11

The Department issued revised guidance in 2001 that largely reaffirmed the requirements

12 and guidelines established under the 1997 Guidance. (Id. at ¶¶ 59-60) (citing Notice of Revised

13 Sexual Harassment Guidance, 66 Fed. Reg. 5512 (Jan. 19, 2001) (“Notice”)). The revised

14 guidance, like the 1997 Guidance, “followed a public notice and comment period.” (Id. at ¶ 60.)

15 As stated in the Notice:

16

The revised guidance reaffirms the compliance standards that OCR

applies in investigations and administrative enforcement of Title IX

17

of the Education Amendments of 1972 (Title IX) regarding sexual

harassment. The revised guidance re-grounds these standards in the

18

Title IX regulations, distinguishing them from the standards

applicable to private litigation for money damages and clarifying

19

their regulatory basis as distinct from Title VII of the Civil Rights

Act of 1964 agency law. In most other respects the revised guidance

20

is identical to the 1997 guidance.

21 Notice, 66 Fed. Reg. 5512. The revised guidance also noted that “[p]rocedures that ensure the

22 Title IX rights of the complainant, while at the same time according due process to both parties

23 involved, will lead to sound and supportable decisions.” U.S. Dep’t of Educ., Revised Sexual

24 Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third

25 Parties 22 (Jan. 2001) (“2001 Guidance”).3 The 2001 Guidance cautioned, however, that “schools

26

27

28 3 https://www2.ed.gov/offices/OCR/archives/pdf/shguide.pdf 3

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United States District Court Northern District of California

1 should ensure that steps to accord due process rights do not restrict or unnecessarily delay the

2 protections provided by Title IX to the complainant.” Id.

3

D. The 2011 Letter and the 2014 Q&A

4

In 2011, the Department issued a “Dear Colleague Letter on Sexual Violence,” followed

5 by a set of questions and answers in 2014 in response to “additional concerns raised by schools

6 and students.” (Id. at ¶ 70) (citing U.S. Dep’t of Educ., Ltr. From Ass’t Sec’y Russlynn Ali (Apr. 7 4, 2011) (“2011 Letter”)4; U.S. Dep’t of Educ., Questions and Answers on Title IX and Sexual 8 Violence (Apr. 29, 2014) (“2014 Q&A”)).5 The 2011 Letter and 2014 Q&A were not subject to

9 public notice and comment. (Id. at ¶ 81.) In addition to reaffirming the 2001 Guidance, the 2011

10 Letter discouraged schools from allowing the complainant and the alleged perpetrator from cross-

11 examining each other in adjudicative proceedings. (Id. at ¶ 74.) The 2011 letter also clarified that

12 “in order for a school’s grievance procedures to be consistent with Title IX standards, the school

13 must use a preponderance of the evidence standard (i.e., it is highly probable or reasonably certain

14 that the sexual harassment or violence occurred).” 2011 Letter at 11. The letter explained:

15

The “clear and convincing” standard (i.e., it is highly probable or

reasonably certain that the sexual harassment or violence occurred),

16

currently used by some schools, is a higher standard of proof.

Grievance procedures that use this higher standard are inconsistent

17

with the standard of proof established for violations of the civil

rights laws, and are thus not equitable under Title IX. Therefore,

18

preponderance of the evidence is the appropriate standard for

investigating allegations of sexual harassment or violence. 19

20 Id. The 2014 Q&A opined, among other things, that Title IX required schools to take “interim

21 measures before the final outcome of an investigation.” 2014 Q&A at 32. Such measures

22 included “allow[ing] the complainant to avoid contact with the alleged perpetrator and . . .

23 ‘chang[ing] academic and extracurricular acitivities . . . as appropriate.’” (Dkt. No. 23 at ¶ 79)

24 (quoting the 2014 Q&A). The 2014 Q&A also directed that “the appeals process must be equal

25 for both parties,” thus, “[i]f a school chooses to provide for an appeal of the findings or remedy or

26 both, it must do so equally for both parties.” 2014 Q&A at 37-38. The 2014 Q&A reiterated “that

27

28

4 https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf 5 https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf

4

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1 schools should provide the same rights and opportunities to complainants and respondents.” (Id.

2 at ¶ 80.)

3

E. The 2017 Guidance

4

On September 22, 2017, the Department issued a “Dear Colleague Letter” rescinding the

5 2011 Letter and the 2014 Q&A (together, “Rescinded Guidance”). (Id. at ¶ 105) (citing U.S.

6 Dep’t of Educ., Ltr. From Ass’t Sec’y Candice Jackson (Sept. 22, 2017) (“2017 Letter”)).6 That

7 same day, the Department issued questions and answers on “Campus Sexual Misconduct.” (Id.)

8 (citing U.S. Dep’t of Educ., Q&A on Campus Sexual Misconduct (Sept. 22, 2017) (“2017

9 Q&A”)).7 The stated purpose of the 2017 documents (collectively, “2017 Guidance”) was to

10 withdraw the “new mandates” imposed by the 2011 letter and 2014 Q&A “related to the

11 procedures by which educational institutions investigate, adjudicate, and resolve allegations of

12 student-on-student sexual misconduct.” 2017 Letter at 1. The 2017 Letter singles-out as flawed

13 the following procedures set forth in the 2011 Letter: (i) requiring “schools to adopt a minimal

14 standard of proof—the preponderance-of-the-evidence standard—in administering student

15 discipline, even though many schools had traditionally employed a higher clear-and-convincing-

16 evidence standard”; (ii) “insist[ing] that schools with an appeals process allow complainants to

17 appeal not-guilty findings, even though many schools had previously followed procedures

18 reserving appeal for accused students”; (iii) “discourag[ing] cross-examination by the parties,

19 suggesting that to recognize a right to such cross-examination might violate Title IX”; (iv)

20 “forb[idding] schools from relying on investigations of criminal conduct by law-enforcement

21 authorities to resolve Title IX complaints, forcing schools to establish policing and judicial

22 systems while at the same time directing schools to resolve complaints on an expedited basis;” and

23 (v) “provid[ing] that any due-process protections afforded to accused students should not

24 ‘unnecessarily delay’ resolving the charges against them.” Id.

25

The 2017 Letter notes that “[t]he Department imposed these regulatory burdens without

26 affording notice and the opportunity for public comment.” Id. at 2. The 2017 Letter continues:

27

28

6 https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf). 7 https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf

5

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Under these circumstances, the Department has decided to withdraw

1

the above-referenced guidance documents in order to develop an

approach to student sexual misconduct that responds to the concerns

2

of stakeholders and that aligns with the purpose of Title IX to

achieve fair access to educational benefits. The Department intends

3

to implement such a policy through a rulemaking process that

responds to public comment. The Department will not rely on the

4

withdrawn documents in its enforcement of Title IX.

5 Id. In the interim, the 2017 Letter directs readers to the 2017 Q&A, and states that the Department

6 “will continue to rely on [the 2001 Guidance], which was informed by a notice-and-comment 7 process,” and a 2006 Dear Colleague Letter8 on Sexual Harassment that reaffirmed the 2001

8 Guidance. Id.

9

i. Substantive changes under the new policy

10

The 2017 Q&A rescinds the 2014 Q&A’s mandate that schools must take interim measures

11 during the investigation of a complaint, and instead returns to the 2001 Guidance, which provided

12 that “[i]t may be appropriate for a school to take interim measures during the investigation of a

13 complaint.” See 2001 Guidance at 16; see also 2017 Q&A at 3. The 2017 Guidance also returns

14 to the pre-2011 policy of giving schools discretion over the standard it employs in evaluating

15 evidence, permitting schools to use either the “preponderance” or a “clear and convincing” 16 standard.9 2017 Q&A at 5. The 2017 Guidance allows for voluntary “informal resolution” where

17 the parties have “receiv[ed] a full disclosure of the allegations and their options for formal

18 resolution and if a school determines that the particular Title IX complaint is appropriate for such

19 a process.” 2017 Q&A at 4. As for the appeals process, the 2017 Guidance allows schools to

20 “choose to allow appeal (i) solely by the responding party; or (ii) by both parties, in which case

21 any appeal procedures must be equally available to both parties.” Id. at 7.

22

The 2017 Q&A reiterates the Department’s intent to “engage in rulemaking on the topic of

23 schools’ Title IX responsibilities concerning complaints of sexual misconduct, including peer-on-

24 peer sexual harassment and sexual violence.” 2017 Q&A at 1.

25

26

8 The 2006 Letter provides no substantive guidance, and merely directs readers to the 2001 Guidance. See U.S. Dep’t of Educ., Ltr. From Ass’t Sec’y Stephanie Monroe (Jan. 25, 2006)

27

https://www2.ed.gov/about/offices/list/ocr/letters/sexhar-2006.html 9 The 2017 Q&A clarifies, however, that “the standard of evidence for evaluating a claim of sexual

28

misconduct should be consistent with the standard the school applies in other student misconduct cases.” 2017 Q&A at 5 n.19.

6

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1 II. Complaint Allegations

2

Plaintiffs are three non-profit advocacy organizations; each brings this action on its own

3 behalf. The gravamen of Plaintiffs’ collective allegations is that the 2017 Guidance: (i) requires a

4 diversion of resources that impedes Plaintiffs’ daily operations; (ii) “limits the efficacy” of the

5 avenues of redress available to Plaintiffs’ clients; (iii) increases the costs borne by Plaintiffs in

6 providing their services; and (iv) “directly conflicts with, impairs, and frustrates [Plaintiffs’]

7 organizational mission and priorities.” (Dkt. No. 23 at ¶¶ 14, 25, 30.)

8

A. SurvJustice, Inc.

9

Plaintiff SurvJustice, Inc.’s “mission is to increase the prospect of justice for survivors of

10 sexual violence.” (Id. at ¶ 10.) SurvJustice “pursues this goal through legal assistance [to

11 complainants], policy advocacy, and institutional training.” (Id.) “The majority of requests for

12 legal assistance that SurvJustice receives are from students at institutions of higher education.”

13 (Id. at ¶ 11.) However, “SurvJustice also engages in policy advocacy by providing technical

14 assistance and advice to legislators and policymakers on various state and federal legislation and

15 policy efforts regarding sexual violence, and working with changemakers within their

16 communities on local policy efforts, especially on college and university campuses.” (Id. at ¶ 13.)

17

B. Equal Rights Advocates

18

Plaintiff Equal Rights Advocates’ mission is to “protect[ ] and expand[ ] economic

19 educational access and opportunities for women and girls.” (Id. at ¶ 23.) In furthering its mission,

20 Equal Rights Advocates “engag[es] in public education efforts, as well as policy reform and

21 legislative advocacy; provid[es] free legal information and counseling; and litigat[es] cases

22 involving issues of gender discrimination in employment and education at all stages.” (Id. at ¶

23 24.) Equal Rights Advocates also “counsels and represents women who have been victims of

24 sexual harassment and/or sexual assault in matters pursuant to Title IX.” (Id.)

25

C. Victim Rights Law Center

26

Plaintiff Victim Rights Law Center’s “mission is to provide legal representation to victims

27 of rape and sexual assault to help rebuild their lives and to promote a national movement

28 committed to seeking justice for every rape and sexual victim.” (Id. at ¶ 28.) In furthering its 7

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1 mission, Victim Rights Law Center provides free legal services to victims, a “substantial portion”

2 of whom are students. (Id. at ¶ 29.) The Law Center’s “attorneys represent campus victims to

3 communicate effectively with campus administrators, acquire interim measures and

4 accommodations to secure their education, prepare and attend disciplinary hearings, file appeals,

5 and if necessary, file complaints with the [the Department’s] Office of Civil Rights.” (Id.)

6 III. Procedural History

7

In January 2018, Plaintiffs filed their initial complaint for injunctive relief against

8 Defendants Elisabeth D. DeVos and Candice Jackson in their official capacities,10 and the

9 Department. (Dkt. No. 1.) Plaintiffs filed an amended complaint the following month, seeking

10 injunctive relief and alleging causes of action for: (i) violation of the Administrative Procedure

11 Act, 5 U.S.C. § 706; (ii) ultra vires action; and (iii) violation of the equal protection guarantee

12 under the Fifth Amendment. (Dkt. No. 23.)

13

Defendants now move to dismiss these causes of action pursuant to Federal Rules of Civil

14 Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 40.) In addition, six advocacy organizations—

15 Women’s and Children’s Advocacy Project, Equal Means Equal, National Coalition against

16 Violent Athletes, Allies Reaching for Equality, Women Matter, and We Are Woman—submitted

17 an amicus curiae brief. (Dkt. No. 47.)

18

LEGAL STANDARD

19

A. Rule 12(b)(1)

20

Pursuant to Rule 12(b)(1), a district court must dismiss an action if it lacks jurisdiction

21 over the subject matter of the suit. See Fed. R. Civ. P. 12(b)(1). “Subject matter jurisdiction can

22 never be forfeited or waived and federal courts have a continuing independent obligation to

23 determine whether subject matter jurisdiction exists.” Leeson v. Transamerica Disability Income

24 Plan, 671 F.3d 969, 975 n.12 (9th Cir. 2012) (internal quotation marks and citation omitted). “A

25 party invoking federal jurisdiction has the burden of establishing that it has satisfied the ‘case-or-

26

27 10 On June 25, 2018, Kenneth L. Marcus succeeded Candice Jackson as Assistant Secretary for

28

Civil Rights; he is automatically substituted as a party pursuant to Federal Rule of Civil Procedure 25(d).

8

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1 controversy’ requirement of Article III of the Constitution [and] standing is a ‘core component’ of

2 that requirement.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To satisfy that

3 requirement and establish standing, a plaintiff must show: “(1) an injury in fact that is (a) concrete

4 and particularized and (b) actual or imminent; (2) causation; and (3) a likelihood that a favorable

5 decision will redress the injury.” Wolfson v. Brammer, 616 F.3d 1045, 1056 (9th Cir. 2010). In

6 ruling on a motion to dismiss under Rule 12(b)(1), the court must “accept as true all material

7 allegations of the complaint, and . . . construe the complaint in favor of the complaining party.”

8 Levine v. Vilsack, 587 F.3d 986, 991 (9th Cir. 2009) (internal quotation marks and citation

9 omitted).

10

B. Rule 12(b)(6)

11

A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege

12 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

13 550 U.S. 544, 570 (2007). A facial plausibility standard is not a “probability requirement” but

14 mandates “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal,

15 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). For purposes of ruling

16 on a Rule 12(b)(6) motion, a court must “accept factual allegations in the complaint as true and

17 construe the pleadings in the light most favorable to the non-moving party.” Manzarek v. St. Paul

18 Fire & Mar. Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). A court is not bound, however, “to

19 accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678.

20

“[D]ismissal may be based on either a lack of a cognizable legal theory or the absence of

21 sufficient facts alleged under a cognizable legal theory.” Johnson v. Riverside Healthcare

22 Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (internal quotation marks and citation omitted); see

23 also Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a

24 claim on the basis of a dispositive issue of law”). The court must be able to “draw the reasonable

25 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663.

26 “Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task

27 that requires the reviewing court to draw on its judicial experience and common sense.” Id. at

28 663-64. 9

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1

DISCUSSION

2

Plaintiff brings three causes of action: (i) violation of the Administrative Procedure Act

3 (“APA”), 5 U.S.C. section 706; (ii) ultra vires action; and (iii) violation of the equal protection

4 guarantee under the Fifth Amendment. Defendants’ motion to dismiss is two-fold. First,

5 Defendants contend that Plaintiffs lack standing because: (i) they have not alleged a cognizable

6 injury; and (ii) they have failed to plead facts that support third party standing for their Fifth

7 Amendment claim. Alternatively, Defendants argue that Plaintiffs fail to state a claim upon which

8 relief can be granted because: (i) the 2017 Guidance does not constitute final agency action and

9 Plaintiffs have another adequate remedy for purposes of the APA claim; (ii) Plaintiffs fail to

10 plausibly allege that Defendants engaged in ultra vires action; and (iii) Plaintiffs fail to plausibly

11 allege that Defendants’ acted with discriminatory purpose. The Court addresses each contention

12 in turn.

13 I. Standing

14

To establish constitutional standing a “plaintiff must have (1) suffered an injury in fact, (2)

15 that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be

16 redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

17 Here, Defendants challenge only the first prong of the standing inquiry—whether Plaintiffs have

18 adequately alleged a legally cognizable injury.11

19

A. APA and Ultra Vires Action Claims

20

“[O]rganizations are entitled to sue on their own behalf for injuries they have sustained.”

21 Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 n.19 (1982). “[A]n organization may satisfy

22 the Article III requirement of injury in fact if it can demonstrate: (1) frustration of its

23 organizational mission [by defendant’s actions]; and (2) diversion of its resources to combat [that

24 frustration].” Smith v. Pacific Props. & Dev. Corp., 358 F.3d 1097, 1105 (9th Cir. 2004).

25 However, “[a]n organization cannot manufacture [an] injury by incurring litigation costs or simply

26 choosing to spend money fixing a problem that otherwise would not affect the organization at all.”

27

28

11 Defendants also challenge Plaintiffs’ Fifth Amendment claim on the grounds that Plaintiffs lack prudential standing. The Court addresses that argument below.

10

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1 Fair Hous. Council of San Fernando Valley, 666 F.3d 1216, 1219 (9th Cir. 2012) (internal

2 quotation marks and citation omitted).

3

i. Frustration of Organizational Mission

4

Where a defendant’s conduct has “perceptibly impaired” an organizational plaintiff’s

5 “ability to provide [services to its clients], there can be no question that the organization has

6 suffered injury in fact.” Havens, 455 U.S. at 379. Here, Plaintiffs SurvJustice and Victim Rights

7 Law Center allege that the 2017 Guidance has frustrated their individual missions, in part, because

8 the Guidance discourages survivors of sexual harassment and sexual violence from filing

9 complaints. (Dkt. No. 23 at ¶ 119.) Because Plaintiffs are organizations that advocate for

10 survivors of sexual harassment, this “chilling effect” on the filing of complaints makes it

11 increasingly difficult for them to fulfill their organizational missions. (Id. at ¶ 121.) Defendants

12 counter that Plaintiffs’ speculative allegations of a subjective “chilling effect” are insufficient to

13 show frustration of organizational mission for purposes of standing.12 (Dkt. No. 40 at 13) (citing

14 San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1129 (9th Cir. 1996) (noting that

15 “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present

16 objective harm or a threat of specific future harm.”) (internal quotation marks and citation

17 omitted).

18

Here, however, Plaintiffs do not allege a “subjective chill”; instead, Plaintiffs allege an

19 observed decrease in student-filed complaints following issuance of the 2017 Guidance.

20 Furthermore, Plaintiffs allege that their clients have directly attributed their hesitancy in filing

21 complaints to the 2017 Guidance. Specifically, SurvJustice alleges:

22

Following and as a result of the 2017 Title IX policy change,

SurvJustice experienced a decrease in the number of sexual violence 23

24 12 Defendants “do not dispute the truth of Plaintiffs’ factual allegations,” but instead, “take issue

25

with Plaintiffs’ mischaracterization of the 2017 guidance.” (Dkt. No. 48 at 3.) Defendants note that the “Court should only accept as true the ‘the non-conclusory “factual content”’ in the

26

amended complaint.” (Id.) (quoting Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009)). Defendants further contend that “[i]nterpretation of the 2017 guidance is a legal analysis, not a

27

factual one.” (Id.) The Court agrees with Defendants that it need not accept as true Plaintiffs’ characterization of the content of the 2017 Guidance; however, at the pleading stage the Court

28

must accept as true Plaintiffs’ factual allegations regarding Plaintiffs’ observed effects of the 2017 Guidance.

11

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survivors seeking its services. This trend is borne out by

1

SurvJustice’s interactions with particular college and university

students who have questioned whether they should continue with

2

their plans to report sexual violence given the uncertainty regarding

their legal protections and an anticipated lowered likelihood of

3

success created by the policy change.

4 (Dkt. No. 23 at ¶ 16.) Victim Rights Law Center alleges:

5

[A]s a result of the 2017 Title IX policy, sexual violence and assault

victims have expressed an unwillingness to report harassment and

6

assault to campus authorities, denying VRLC the ability to achieve

its mission. VRLC saw an immediate chilling effect after the

7

Department issued its 2017 . . . Title IX policy. VRLC has seen a

decline in the number of sexual violence and assault survivors

8

willing to pursue justice through campus processes.

9 (Id. at ¶ 31.) Victim Rights Law Center further states that “[s]uch declines in reporting and

10 hesitance to participate in the grievance process either through educational institutions or at the

11 Department . . . directly threaten and frustrate VRLC’s mission and purpose.” (Id.) Based on

12 these allegations, SurvJustice and Victim Rights Law Center have plausibly alleged a frustration

13 of their missions as a result of the 2017 Guidance.

14

Plaintiff Equal Rights Advocates has similarly pleaded a frustration of its mission due to

15 the 2017 Guidance. As part of its stated mission, Equal Rights Advocates “counsels and

16 represents women who have been victims of sexual harassment and/or sexual assault in matters

17 pursuant to Title IX.” (Id. at ¶ 24.) Equal Rights Advocates alleges that the changes to the

18 Department’s Title IX enforcement policy have made it more difficult to obtain beneficial

19 outcomes for its clients. Specifically, Equal Rights Advocates alleges that the policy change

20 permitting schools to offer appellate rights to only the accused “inhibit[s] ERA’s ability to obtain

21 redress and achieve results for its clients.” (Id. at ¶ 27.) Equal Rights Advocates’ allegations,

22 coupled with its alleged diversion of resources (discussed below), is sufficient to establish

23 frustration of its mission. See El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Rev.,

24 959 F.2d 742, 748 (9th Cir. 1982) (organizations “established to assist Central American refugee

25 clients” suffered injury in fact where “their efforts to obtain asylum and withholding of

26 deportation in immigration court proceedings” were frustrated by defendant’s policy and required

27 a diversion of resources).

28 // 12

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1

ii. Diversion of Resources

2

“[A] diversion-of-resources injury is sufficient to establish organizational standing at the

3 pleading stage, even when it is ‘broadly alleged.’” Nat’l Council of La Raza v. Cegavske, 800

4 F.3d 1032, 1040 (9th Cir. 2015) (quoting Havens, 455 U.S. at 379). Here, Plaintiffs have

5 sufficiently pleaded a diversion-of-resources injury to survive a motion to dismiss.

6

SurvJustice alleges that the 2017 Guidance has required it to divert resources by: (i)

7 increasing the number of its “student rights trainings at college and university campuses”; (ii)

8 “devot[ing] significant staff time to reviewing and understanding the 2017 Title IX policy in order

9 to advise clients in ongoing campus investigations and advocate on their behalf”; and (iii)

10 spend[ing] additional staff time and resources that it has not had to spend in the past attempting to

11 get school officials to respond to a survivor’s complaint of sexual violence.” (Dkt. No. 23 at ¶¶

12 16-18, 21.) Similarly, Equal Rights Advocates alleges that it has “divert[ed] staff time and

13 resources away from core programmatic activities . . . in order to step up its efforts to assist

14 victims of sexual harassment and assault in educational settings obtain redress,” due to the 2017

15 Guidance. (Id. at ¶ 26.) Equal Rights Advocates’ diversion of resources includes “launch[ing] a

16 national initiative to End Sexual Violence in Education” that expands Equal Rights Advocates’

17 counseling program, re-designs its intake process, and “establish[es] a network of attorneys to

18 provide pro bono counseling and other assistance to victims of sexual harassment and assault in

19 schools.” (Id.) The 2017 Guidance has required Victim Rights Law Center “to spend additional

20 staff time and resources that it has not had to spend in the past attempting to get school officials to

21 respond [to its clients’ complaints].” (Id. at ¶ 33.) Furthermore, Victim Rights Law Center has

22 devoted “staff time to reviewing and understanding the 2017 Title IX policy in order to advise

23 clients in ongoing campus investigations,” thereby reducing “the amount of time that it has

24 available to provide legal services, including work on ongoing civil litigation.” (Id. at ¶ 34.)

25

Defendants argue that Plaintiffs have failed to show that their alleged diversion of

26 resources was necessary to avoid “some other injury.” (Dkt. No. 40 at 10) (citing La Asociacion

27 de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010)

28 (noting that a plaintiff must “show that it would have suffered some other injury if it had not 13

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1 diverted resources to counteracting the problem.”). Avoidance of “some other injury” is

2 sufficiently alleged, however, where an organization contends that the challenged policy required

3 it to divert resources it “otherwise would spend in other ways” to further its mission. El Rescate,

4 959 F.2d at 748 (“The allegation that [defendant’s] policy frustrates [plaintiff-organizations’]

5 goals and requires the organizations to expend resources in representing clients they otherwise

6 would spend in other ways is enough to establish standing.”) (citing Havens, 455 U.S. at 379); see

7 also Smith, 358 F.3d at 1105 (allegations of diversion of resources sufficient to survive motion to

8 dismiss where plaintiff-organization “specifically stated in its complaint that ‘in order to monitor

9 the violations and educate the public regarding the discrimination at issue, [plaintiff] has had (and,

10 until the discrimination is corrected, will continue) to divert its scarce resources from other efforts

11 to [further its mission]”).

12

Plaintiffs have sufficiently alleged that the 2017 Guidance has required them to divert

13 resources that otherwise “would have been spent on some other activity that advances their goals.”

14 See Nat’l Council of La Raza, 800 F.3d at 1040 (finding organizational standing where plaintiffs

15 were not “simply going about their ‘business as usual,’ unaffected by [defendant’s] conduct.”).

16 Because there is no dispute that Plaintiffs have met the other two prongs of the standing inquiry—

17 causation and redressability—Plaintiffs have adequately alleged standing at the pleading stage

18 with respect to their APA and ultra vires causes of action. See Lujan, 504 U.S. at 561 (“At the

19 pleading stage, general factual allegations of injury resulting from the defendant’s conduct may

20 suffice, for on a motion to dismiss we presume that general allegations embrace those specific

21 facts that are necessary to support the claim.”) (internal quotation marks and citation omitted).

22

Accordingly, the Court denies Defendants’ motion to dismiss the first and second causes of

23 action for lack of standing.

24

B. Fifth Amendment Claim

25

Defendants challenge Plaintiffs’ prudential standing with regard to the third cause of action

26 under the Due Process Clause of the Fifth Amendment, arguing that Plaintiffs “do not allege that

27 Defendants discriminated against them on the basis of sex,” but “[r]ather, they allege that

28 Defendants discriminated against women.” (Dkt. No. 40 at 23.) Thus, Defendants insist the claim 14

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1 must be dismissed because Plaintiffs are resting their claim for relief on the legal rights of third 2 parties but have failed to plead facts supporting third party13 or associational14 standing. The

3 Court agrees.

4

Plaintiffs’ allegations do not discuss gender discrimination against Plaintiffs in their

5 capacity as organizations, but more generally allege that the 2017 Guidance discriminates against

6 women in violation of the equal protection guarantee under the Due Process Clause of the Fifth

7 Amendment. (Dkt. No. 23 at ¶¶ 135-40.) Plaintiffs do not, however, invoke associational or third

8 party standing to litigate this claim on behalf of their female members or clients. Instead, 9 Plaintiffs reiterate the same allegations set forth in support of their own organizational standing.15

10 (See id. at ¶ 140) (“As a result of Defendants’ unlawful actions, Plaintiffs have been harmed and

11 their missions frustrated, as outlined more fully in paragraphs 10-34 above.”) Those allegations

12 are insufficient for their equal protection claim, however, because Plaintiffs are not seeking to 13 vindicate their own rights as an organization, but the constitutional rights of women in general.16

14 See Warth v. Seldin, 422 U.S. 490, 499 (1975) (“[E]ven when the plaintiff has alleged injury

15 sufficient to meet the ‘case or controversy’ requirement, [the Supreme] Court has held that the

16 plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief

17 on the legal rights and interests third parties.”).

18

19 13 A plaintiff asserting third party standing “must show his own injury, a close relationship

20

between himself and the parties whose rights he asserts, and the inability of the parties to assert their own rights.” McCollum v. Cal. Dep’t. of Corr., 647 F.3d 870, 879 (9th Cir. 2011).

21

14 “[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are

22

germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” United Food & Commercial

23

Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 553 (1996) (internal quotation marks and citation omitted).

24

15 At oral argument on July 19, 2018, Plaintiffs suggested that the complaint’s allegations were sufficient to infer third-party standing based on the Plaintiff-organizations’ close relationship with

25

women. The Court is not persuaded. 16 The Court need not consider whether the “zone of interests” test set forth in Lexmark Int’l v.

26

Static Control Components, Inc., 124 S. Ct. 1377 (2014) is applicable to the prudential standing issue raised here. In Lexmark, the Supreme Court did not address the issue of third-party standing.

27

See 124 S. Ct. at 1387 n.3; see also Ray Charles Found. v. Robinson, 795 F.3d 1109, 1118 n.9 (9th Cir. 2015) (“conclud[ing], in unison with all other courts to have spoken on the issue [after

28

Lexmark], that the third-party standing doctrine continues to remain in the realm of prudential standing.”).

15

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1

Accordingly, the Court grants without prejudice Defendants’ motion to dismiss the third

2 cause of action for lack of standing.

3 II. Failure to State a Claim

4

A. APA Claim

5

Under the APA, a plaintiff may seek judicial review of “final agency action for which there

6 is no other adequate remedy in a court.” 5 U.S.C. § 704. Determining whether an agency action is

7 “final” is a two-step process. Bennett v. Spear, 520 U.S. 154, 177-78 (1997). The action must

8 first “mark the consummation of the agency’s decisionmaking process.” Id. (internal quotation

9 marks and citation omitted). Next, “the action must be one by which rights or obligations have

10 been determined, or from which legal consequences will flow.” Id. at 178 (internal quotation

11 marks and citation omitted). Defendants argue that the 2017 Title IX policy does not constitute

12 final agency action, but is instead merely “guidance” and is therefore non-reviewable under the

13 APA.

14

In determining whether the challenged agency action is “final” under the first prong of the

15 Bennett test, the Court must “look to see whether the agency has rendered its last word on the

16 matter.” Oregon Nat. Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 984 (9th Cir. 2006)

17 (internal quotation marks and citation omitted). In doing so, the Court must consider “the effect of

18 the action and not its label.” Id. at 985 (internal quotation marks and citation omitted). Thus,

19 “finality is to be interpreted in a pragmatic way.” Oregon v. Ashcroft, 368 F.3d 1118, 1147 (9th

20 Cir. 2004) (internal quotation marks and citation omitted).

21

The 2017 Letter notes that it “does not add requirements to applicable law,” and that it

22 “intends to implement [a revised Title IX policy] through a rulemaking process that responds to

23 public comment.” 2017 Letter at 2. Likewise, the 2017 Q&A states, in pertinent part:

24

The Department of Education intends to engage in rulemaking on

the topic of schools’ Title IX responsibilities concerning complaints

25

of sexual misconduct, including peer-on-peer sexual harassment and

sexual violence. The Department will solicit input from stakeholders

26

and the public during that rulemaking process. In the interim, these

questions and answers—along with the [2001 Guidance] previously

27

issued by [OCR]—provide information about how OCR will assess

a school’s compliance with Title IX. 28

16

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United States District Court Northern District of California

1 2017 Q&A at 1. Nonetheless, the Department’s stated intention to engage in future rulemaking

2 through notice and comment is not dispositive as to whether the 2017 Guidance reflects the

3 consummation of the Department’s decision-making process regarding OCR’s current Title IX

4 enforcement policy. See Columbia Riverkeeper v. U.S. Coast Guard, 761 F.3d 1084, 1094-95 (9th

5 Cir. 2014) (“[A]n agency’s characterization of its action . . . is not necessarily dispositive, and

6 courts consider whether the practical effects of an agency’s decision make it a final agency

7 action”). In other words, because the 2017 Guidance consummates the Department’s decision to

8 rescind the previous guidance and thereby effect several substantive changes, it reflects a

9 definitive statement regarding the Department’s current Title IX enforcement policy. Whether the

10 Department intends to engage in future rulemaking does not affect the finality of that particular

11 decision. See Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 593 (9th

12 Cir. 2008) (rejecting defendant’s argument against finality that “conflate[d] one . . . decision with

13 a future yet distinct administrative process.”).

14

The Court next considers whether the action is “one by which rights or obligations have

15 been determined, or from which legal consequences will flow.” Bennett, 520 U.S. at 178 (internal

16 quotation marks and citation omitted). Similarly, the Court need not blindly accept that the 2017

17 Guidance “does not add requirements to applicable law” merely because the documents say so.

18 See Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022-23 (D.C. Cir. 2000) (rejecting as

19 “boilerplate” a disclaimer contained in EPA guidance documents stating that the “policies set forth

20 in this paper are intended solely as guidance, do not represent Agency action, and cannot be relied

21 upon to create rights enforceable by any party.”). Instead, relevant considerations in this regard

22 include: (i) whether the agency action has a “direct and immediate effect on the complaining

23 parties,” (ii) “whether it has the status of law,” and (d) “whether it requires immediate

24 compliance.” Ashcroft, 368 F.3d at 1146-47 (internal quotation marks and citation omitted).

25 Although it is a close call, drawing all inferences in Plaintiffs’ favor, the 2017 Guidance does not

26 satisfy the second Bennett prong.

27

Plaintiffs contend that if schools do not comply with the Department’s guidance, they risk

28 an enforcement action by OCR and loss of federal funding. Plaintiffs also allege that some 17

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United States District Court Northern District of California

1 schools have responded accordingly, citing the 2017 Guidance as the impetus for revising their

2 Title IX policies. (Dkt. No. 23 at ¶¶ 116-117.) Defendants argue that the 2017 Guidance

3 constitutes a “‘bare statement of the agency’s opinion’ and does not produce legal consequences.”

4 (Dkt. No. 40 at 24) (quoting Fairbanks, 543 F.3d at 593-94). The Court agrees.

5

The 2017 Letter states that “the Department’s enforcement efforts proceed from Title IX

6 itself and its implementing regulations.” 2017 Letter at 2. And although the Court need not

7 accept that assertion on its face, see Appalachian Power Co., 208 F.3d at 1022-23, the direct effect

8 of the 2017 Guidance does not suggest otherwise. The 2017 Q&A states that the guidance

9 “provide[s] information about how [the Department’s Office of Civil Rights] will assess a school’s

10 compliance with Title IX” for enforcement purposes, however, it does not suggest that schools are

11 immediately required to comply with the Department’s guidance or else face legal consequences.

12 2017 Q&A at 1. Rather, the plain language of the 2017 Guidance suggests just the opposite—

13 legal consequences continue to flow only from a school’s noncompliance with Title IX and its

14 implementing regulations, and the guidance merely provides “information” for schools regarding

15 how the Department’s Office of Civil Rights will assess compliance with those existing laws.

16 Therefore, if a school is in compliance with Title IX and its regulations, it need not change its

17 policies in response to the 2017 Guidance. Plaintiffs plausibly allege that some schools have done

18 just that; however, voluntarily changing a policy in response to an agency’s nonbinding

19 enforcement guidance is not the same as being required to do so by the guidance itself.

20

Nor does the 2017 Guidance suggest that it creates new obligations for schools. The

21 language is instead discretionary, and largely relieves schools of previous obligations under the

22 Rescinded Guidance. Plaintiffs’ reference to “mandatory language” in the 2017 Guidance as

23 evidence of its legal effect is unavailing. Simply put, if a school disagreed with the 2017

24 Guidance and chose not to follow it, it would suffer no legal consequences as long as it continued

25 to comply with Title IX and its implementing regulations.

26

At the hearing on July 19, 2018, Plaintiffs raised a new argument that the 2017 Guidance

27 creates legal consequences—and thus satisfies the second prong of Bennett—because it provides

28 18

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United States District Court Northern District of California

1 safe harbor from deliberate indifference claims. The Court requested supplemental briefing from 2 the parties on that specific issue.17 (See Dkt. No. 67 at 42-43; 84-85.)

3

The gravamen of Plaintiffs’ supplemental argument is that a school could rely on its

4 compliance with the 2017 Guidance to defend against a private right of action in which the

5 plaintiff claimed that the school was deliberately indifferent to discrimination. (See Dkt. No. 68 at

6 5) (citing U.S. Army Corps of Engs. v. Hawkes Co., Inc., 136 S. Ct. 1807 (2016)). Thus, in

7 Plaintiffs’ view, a school’s compliance with the 2017 Guidance provides the type of “safe harbor”

8 recognized by the Supreme Court in Hawkes as giving rise to legal consequences sufficient to

9 satisfy the second prong of Bennett. The Court disagrees.

10

The challenged agency action in Hawkes stemmed from a U.S. Army Corps of Engineers’

11 jurisdictional determination designating a particular waterway as within the scope of the Clean

12 Water Act. 136 S. Ct. at 1813. As relevant here, the Supreme Court concluded that the

13 jurisdictional determination met Bennett’s second prong, and in doing so discussed “the effect of

14 an approved [jurisdictional determination] stating that a party’s property does not contain

15 jurisdictional waters—a ‘negative’ [jurisdictional determination] in Corps parlance.” Id. at 1814.

16 The Hawkes Court noted that “such a [jurisdictional determination] will generally bind the Corps

17 for five years.” Id. Because an approved jurisdictional determination was thus “binding on the

18 Government and [would] represent the Government’s position in any subsequent Federal action or

19 litigation concerning that [jurisdictional] determination,” the negative jurisdictional determination

20 created a safe harbor from civil enforcement proceedings brought by the Government under the

21 Clean Water Act against a property owner whose property fell within the scope of the

22 jurisdictional determination. Id. The Hawkes Court deemed such safe harbor from liability “a

23 legal consequence[ ] satisfying the second Bennett prong.” Id. (internal quotation marks and

24 citation omitted).

25

26

17 Plaintiffs’ supplemental papers set forth additional arguments beyond the scope of the discrete issue on which the Court requested briefing. (See generally Dkt. No. 68 at 5-11.) Defendants

27

argue that Plaintiffs’ additional arguments “constitute[ ] unauthorized supplementary material” in violation of Civil Local Rule 7-3(d). (Dkt. No. 70 at 6.) The Court agrees, and will only consider

28

Plaintiffs’ supplemental argument related to the issue of safe harbor from deliberate indifference claims.

19

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United States District Court Northern District of California

1

Hawkes does not help Plaintiffs. First, and as previously discussed, the 2017 Guidance is

2 not binding. Further, it does not create the kind of complete immunity from suit discussed in

3 Hawkes. The situation contemplated in Hawkes—where a defendant-property owner could rely

4 entirely on a negative jurisdictional determination as providing safe harbor—does not exist here.

5 A school defending a deliberate indifference claim under Title IX could not simply point to its

6 compliance with the 2017 Guidance and escape liability. As Defendants note, courts in this

7 district have clearly held that while compliance or noncompliance with Department guidance is a

8 consideration in deliberate indifference claims, it is not legally dispositive. (See Dkt. No. 70 at 7)

9 (citing Moore v. Regents of the Univ. of Cal., No. 15-cv-05779-RS, 2016 WL 4917103, at *3

10 (N.D. Cal. Sept. 15, 2016) (“Adherence to the [Dear Colleague Letter] might be good policy, but

11 failure to adhere, standing alone, does not constitute deliberate indifference.”); Karasek v. Regents

12 of the Univ. of Cal., No. 15-cv-03717-WHO, 2015 WL 8527338, at *14 (N.D. Cal. Dec. 11, 2015)

13 (“Plaintiffs do not cite, and I have not found, any case in which a plaintiff has successfully relied

14 on the [Dear Colleague Letter] to establish deliberate indifference under Title IX.”). The Court

15 finds this authority persuasive and on point as to whether Department guidance provides the same

16 safe harbor from liability as the type of binding agency action at issue in Hawkes. It does not.

17

Accordingly, the 2017 Guidance does not constitute “final agency action” for purposes of

18 review under the APA because it fails to satisfy the second Bennett prong. The Court need not

19 address the existence of other adequate remedies or Plaintiffs’ cause of action for arbitrary and

20 capricious action under 5 U.S.C. section 706.

21

B. Ultra Vires Action

22

Non-statutory review of agency action is available when the action is ultra vires; that is,

23 when an agency has violated an unambiguous and mandatory legal requirement. Leedom v. Kyne,

24 358 U.S. 184, 188-89 (1958). Plaintiffs allege that the Defendants “acted in excess of their legal

25 authority” in adopting the 2017 Guidance. (Dkt. No. 23 at ¶ 134.) Defendants argue that

26 Plaintiffs fail to plead any allegations describing how Defendants—who are charged with

27 enforcing Title IX—acted outside their authority by “issuing guidance describing how [the

28 20

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United States District Court Northern District of California

1 Department] will exercise [that] enforcement authority.” (Dkt. No. 40 at 28.) The Court agrees.

2 Plaintiffs provide wholly conclusory allegations in support of this claim.

3

In the absence of plausible allegations that Defendants acted outside their legal authority in

4 issuing the 2017 Guidance, the Court grants Defendants motion to dismiss the claim for ultra vires

5 action.

6

CONCLUSION

7

For the reasons set forth above, the Court GRANTS Defendants’ motion to dismiss. The

8 allegations are insufficient to show standing to bring an equal protection claim, the 2017 Guidance

9 does not constitute final agency action for purposes of an APA claim, and the allegations do not

10 plausibly suggest that Defendants acted outside their authority for the ultra vires action claim.

11 Plaintiffs’ equal protection and ultra vires action claims are dismissed without prejudice and with

12 leave to amend. The dismissal of Plaintiffs’ APA claim is with prejudice given that amendment

13 would be futile because the 2017 Guidance does not satisfy the second Bennett prong as a matter

14 of law. Plaintiffs’ amended complaint, if any, shall be filed within 30 days of the date of this

15 Order.

16

IT IS SO ORDERED.

17 Dated: October 1, 2018

18

19

20

JACQUELINE SCOTT CORLEY United States Magistrate Judge

21

22

23

24

25

26

27

28 21

 
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1 Jennifer A. Reisch (CA Bar No. 223671)

Equal Rights Advocates 2 1170 Market Street, Suite 700

3

San Francisco, CA 94102 Ph: (415) 621-0672

4 Fax: (415) 621-6744 Email: jreisch@equalrights.org

5

6

Javier M. Guzman* Robin Thurston*

7

Karianne Jones* Democracy Forward Foundation

8 1333 H St. NW Washington, DC 20005

9 Ph: (202) 448-9090

10

Fax: (202) 701-1775 Emails: jguzman@democracyforward.org, rthurston@democracyforward.org,

11 kjones@democracyforward.org

12 Leecia Welch (CA Bar No. 208741)

Alice Y. Abrokwa*

13 National Center for Youth Law

14

405 14th Street, 15th Floor Oakland, CA 94612, and

15

1313 L Street, NW, Suite 130 Washington, DC 20005

16 Ph: (510) 835-8098

Fax: (510) 835-8099 17 Emails: lwelch@youthlaw.org, aabrokwa@youthlaw.org

18 Emily Martin*

19

Neena Chaudhry* Sunu Chandy*

20 National Women’s Law Center

11 Dupont Circle, NW, Suite 800 21 Washington, DC 20036

22

Ph: (202) 588-5180 Fax: (202) 588-5185

23 Emails: emartin@nwlc.org, nchaudhry@nwlc.org, schandy@nwlc.org

24 *pro hac vice

25 Counsel for Plaintiffs 26

27

28

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Case 3:18-cv-00535-JSC Document 86 Filed 10/31/18 Page 2 of 53

1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

2

SAN FRANCISCO DIVISION

3 SURVJUSTICE, INC.,

)

4

1015 15th Street NW, Suite 632 Washington, DC 20005,

5

EQUAL RIGHTS ADVOCATES 6 1170 Market Street, Suite 700

) ) ) ) ) )

7 San Francisco, CA 94102,

) )

8

VICTIM RIGHTS LAW CENTER 520 SW Yamhill Street

9 Portland, OR 97204,

) ) ) )

10

Plaintiffs,

) )

11 v.

) )

12 ELISABETH D. DEVOS, in her official
13 capacity as Secretary of Education, 400 Maryland Avenue SW
14 Washington, DC 20202,

) ) ) ) ) )

15 KENNETH L. MARCUS, in his official

) )

16 capacity as Assistant Secretary for Civil Rights,
17 400 Maryland Avenue SW 18 Washington, DC 20202,

) ) ) ) ) )

19 20

U.S. DEPARTMENT OF EDUCATION, 400 Maryland Avenue SW Washington, DC 20202,

) ) ) )

21

Defendants.

) )

22

)

Case Number: 3:18-cv-00535-JSC
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF DEMAND FOR JURY TRIAL

23 24 1.

Plaintiffs SurvJustice, Inc., Equal Rights Advocates, and Victim Rights Law Center bring

25 this action against Defendants U.S. Department of Education (“the Department” or “the

26 agency”), Secretary Elisabeth DeVos, and Assistant Secretary for Civil Rights Kenneth L.
27 Marcus seeking vacatur of the Department’s new policy, as expressed in a Dear Colleague Letter 28

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Case 3:18-cv-00535-JSC Document 86 Filed 10/31/18 Page 3 of 53

1 and Question and Answers guidance issued on September 22, 2017 (hereinafter jointly referred

2 to as the “2017 Title IX Policy” or “Policy”), concerning Title IX of the Education Amendments

3 of 1972 (“Title IX”).

4 2.

Over 45 years ago, Congress enacted Title IX to prohibit discrimination on the basis of

5

6 sex in educational programs and activities receiving federal financial assistance (hereinafter

7 “recipients” or “educational institutions”). This landmark civil rights law has helped fight sex

8 discrimination and promote equal educational access and opportunities for girls and women from

9 the classroom to the playing field.

10 3. Twenty years ago, acting on the basis of Supreme Court decisions and the recognition
11 that Title IX’s promise of equality is hollow if a student can be subjected to sexual harassment 12
with impunity, the Department issued its first guidance to educational institutions (both K-12 13 14 schools and institutions of higher education) on the standards that govern their response to sexual
15 harassment, a form of sex discrimination. Since then, through several successive guidance

16 materials issued under Administrations led by both political parties, the Department has

17 reaffirmed that Title IX’s prohibition on sex discrimination requires recipients to prevent and
18 redress sex and gender-based harassment. These policies recognize that students who experience 19 sexual harassment, including in its most extreme form, sexual violence, suffer not only 20
physically and emotionally, but also in their ability to participate in and benefit from educational 21 22 opportunities, on the basis of their sex.

23

24

25

26

27

28

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Case 3:18-cv-00535-JSC Document 86 Filed 10/31/18 Page 4 of 53

1 4. The reaffirmation of Title IX’s protections continued until September 2017, when the

2 Department formally rescinded sexual violence guidance documents issued in 2011 and 2014

3 and issued new conflicting policy documents to educational institutions.1

4 5.

The 2017 Title IX Policy imposes significant changes on educational institutions and on

5

6 students to the detriment of survivors of sexual violence. For example, whereas previous

7 Department Title IX guidance advised educational institutions to make available interim

8 measures, such as a revised class schedule or new housing assignment, in order to protect the

9 safety of students who complain of sexual harassment and preserve their access to an education,

10 the 2017 Title IX Policy prohibits schools from making available interim measures to a
11 complainant unless they are offered “on equal terms” to respondent(s) who are being 12
investigated for sexual misconduct. The 2017 Title IX Policy also removes protections for sexual 13 14 harassment victims, such as by allowing schools to resolve complaints through mediation
15 between the parties, even in cases of alleged sexual assault, where the pressure to agree to

16 mediation can be coercive.

17 6. The 2017 Title IX Policy, which disproportionately burdens women and girls, was

18 motivated by the baseless and discriminatory but longstanding stereotype that women and girls 19 tend to lie about or exaggerate experiences of sexual assault and harassment. As such, it 20
discriminates on the basis of sex in violation of the equal protection guarantee of the Fifth 21 22 Amendment of the United States Constitution. Plaintiffs therefore respectfully request that the
23 2017 Title IX Policy be vacated.

24

25 1 See U.S. Dep’t of Educ., Ltr. from Ass’t Sec’y Candice Jackson (Sept. 22, 2017),

26 https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf (“2017 Dear

27

Colleague Letter”); U.S. Dep’t of Educ., Q&A on Campus Sexual Misconduct (Sept. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf (“2017 Q&A”).

28

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1

Jurisdiction and Venue

2 7. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.

3 8.

Venue is proper under 28 U.S.C. § 1391(e) because Equal Rights Advocates, a plaintiff,

4 resides in San Francisco, California.
5

6

Intradistrict Assignment

7 9. Filing is proper in this Judicial District because Equal Rights Advocates, a plaintiff, is

8 located in San Francisco, California.

9

Parties

10 10. Plaintiff SurvJustice, Inc., (“SurvJustice”) is a national not-for-profit organization based
11 in Washington, D.C., founded in 2014. SurvJustice’s mission is to increase the prospect of 12
justice for survivors of sexual violence. It pursues this goal through legal assistance, policy 13 14 advocacy, and institutional training. Through its efforts, SurvJustice aims to decrease the
15 prevalence of sexual violence throughout the country.

16 11. SurvJustice provides legal assistance to survivors of sexual violence in campus

17 proceedings, as well as civil and criminal legal systems. The majority of requests for legal
18 assistance that SurvJustice receives are from students at institutions of higher education. 19
SurvJustice staff help sexual violence survivors navigate the campus grievance process, 20
including by reporting the violence; assisting survivors throughout any investigation; advising 21 22 survivors in campus hearings; helping survivors with any appeals; and helping survivors access
23 accommodations and services from their educational institutions. They frequently serve as

24 “advisors of choice” for college students in institutional disciplinary actions for cases of alleged

25 domestic violence, dating violence, sexual assault, or stalking, as provided for by the Clery Act
26 as amended by the 2013 Violence Against Women Reauthorization Act, 20 U.S.C. § 27

28

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Case 3:18-cv-00535-JSC Document 86 Filed 10/31/18 Page 6 of 53
1 1092(f)(8)(B)(iv)(II) (“Clery Act”). SurvJustice staff also represent survivors in civil litigation or
2 refer survivors to other qualified lawyers for such representation. SurvJustice also assists 3 survivors in reporting crimes to law enforcement, in advocating for prosecution, and by serving 4
as media representatives for victims and their families in high-profile criminal cases. 5 6 12. SurvJustice also trains educational institutions to prevent and address sexual violence 7 through compliance with federal law, enforcement of victims’ rights, and adoption of best 8 practices that include development of a culture that supports survivors and encourages “sexual
9 respect” (i.e., respect in sexual interactions and relationships). As part of this work, SurvJustice 10 has provided the annual training required by the Clery Act to various campus officials across the 11 country who investigate and adjudicate complaints of sexual assault, dating violence, domestic 12
violence, and stalking. 13 14 13. SurvJustice also engages in policy advocacy by providing technical assistance and advice 15 to legislators and policymakers on various state and federal legislation and policy efforts 16 regarding sexual violence, and by working with changemakers within their communities on local
17 policy efforts, especially on college and university campuses. 18 14. SurvJustice brings this action on its own behalf because the challenged 2017 Title IX 19 Policy (i) requires resource-intensive efforts that impede its daily operations; (ii) limits the 20
efficacy of available avenues of redress for the students it serves; (iii) increases the costs it bears 21 22 in its work on behalf of sexual violence survivors—for example, by causing it to waive intake 23 fees and reduce or waive speaking fees; and (iv) otherwise directly conflicts with, impairs, and
24 frustrates SurvJustice’s organizational mission and priorities.
25 15. As an organization that provides direct assistance and referral services to survivors of 26 sexual violence, SurvJustice’s core mission and daily operations have been and will continue to 27
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Case 3:18-cv-00535-JSC Document 86 Filed 10/31/18 Page 7 of 53
1 be impeded by the chilling effect that the 2017 Title IX Policy has had and continues to have on
2 the reporting of sexual violence. 3 16. Following and as a result of the 2017 Title IX Policy change, SurvJustice experienced a 4
decrease in the number of sexual violence survivors seeking its services. This trend is borne out 5 6 by SurvJustice’s interactions with particular college and university students who have questioned 7 whether they should continue with their plans to report sexual violence given the uncertainty 8 regarding their legal protections and an anticipated lowered likelihood of success created by the
9 policy change. 10 17. Following the 2017 Title IX Policy change and as a result of the change, SurvJustice has 11 provided an increased number of student rights trainings at college and university campuses. 12
These additional trainings are necessary to respond to confusion created by the 2017 Title IX 13 14 Policy among students about their legal rights. SurvJustice has also significantly reduced its price 15 for doing these trainings or agreed to provide them pro bono in response to increased need 16 resulting from the widespread uncertainty among students regarding their legal protections
17 following the 2017 Title IX Policy change. 18 18. SurvJustice has also had to devote significant staff time to reviewing and understanding 19 the 2017 Title IX Policy in order to advise clients in ongoing campus investigations and advocate 20
on their behalf. This shift in use of time due to the change in policy decreased the amount of time 21 22 that SurvJustice has available to provide legal services, including work on ongoing civil 23 litigation.
24 19. The 2017 Title IX Policy makes it more difficult for SurvJustice to accomplish its
25 mission of obtaining justice for survivors of sexual violence, both because it makes beneficial 26
27
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1 outcomes less likely for survivors and because even where those outcomes are still available,

2 success will take more staff time and effort.
3 20. For example, SurvJustice often advocates for schools to provide accommodations to its 4
clients, including during the pendency of an investigation, so that they can continue to learn 5 6 safely. SurvJustice often requests unilateral no-contact orders on its clients’ behalf but has 7 opposed mutual no-contact orders because they tend to be retaliatory.2 Yet the agency’s Title IX
8 policy change requires no-contact orders to be mutual, by prohibiting a school from making

9 interim measures available to only one party. SurvJustice has observed schools issuing mutual no

10 contact orders on a regular basis. The 2017 Title IX Policy therefore impedes SurvJustice’s
11 mission by making it more difficult for SurvJustice to obtain interim measures that are 12
appropriate for survivors of sexual harassment and to ensure ongoing access to education for its 13 14 clients in accordance with its mission.
15 21. In addition, since the 2017 Title IX Policy no longer identifies any benchmarks to

16 determine whether educational institutions are meeting their obligation to resolve reports of

17 sexual violence in a timely fashion, SurvJustice has observed a trend in educational institutions

18 not responding at all, or not responding as promptly, to its clients’ complaints. This trend has 19 required SurvJustice to spend additional staff time and resources that it has not had to spend in 20
the past attempting to get school officials to respond to a survivor’s complaint of sexual violence. 21 22 22. The Department’s 2017 Title IX Policy also makes it more difficult for SurvJustice to
23 obtain beneficial results for its clients due to, among other particulars, its endorsement of one-

24

25 2 SurvJustice argues that mutual no-contact orders are forms of retaliation when there is no basis to place the order against victim-complainants other than the fact that they made a Title IX

26 complaint. In such instances, schools limit victims’ access to educational opportunities and

27

benefits as a direct result of the victims’ assertion of their federal rights and utilization of the Title IX grievance process.

28

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Case 3:18-cv-00535-JSC Document 86 Filed 10/31/18 Page 9 of 53
1 sided appeal rights and a heightened standard of evidence that disfavors survivors and makes
2 findings of responsibility for sexual misconduct more onerous. 3 23. Plaintiff Equal Rights Advocates (“ERA”) is a national non-profit civil rights 4
organization based in San Francisco, California. Founded in 1974, ERA is dedicated to 5 6 protecting and expanding economic educational access and opportunities for women and girls. 7 24. ERA furthers its mission through engaging in public education efforts, as well as policy 8 reform and legislative advocacy; providing free legal information and counseling; and litigating
9 cases involving issues of gender discrimination in employment and education at all stages, from 10 the administrative agency process through and including the United States Supreme Court. ERA 11 has a long history of pursuing gender justice and equal opportunity for women and girls in 12
education and has litigated a number of important precedent-setting cases under Title IX, 13 14 including Doe v. Petaluma City School District, 54 F.3d 1447 (9th Cir. 1995), which held for the 15 first time that a school can be sued for sex discrimination under that law when it fails to address 16 one student’s serious harassment of another. ERA has participated as amicus curiae in scores of
17 state and federal cases involving the interpretation and application of procedural rules and civil 18 rights laws that have an impact on access to justice and economic opportunity for women and 19 girls. Through its Advice and Counseling program, ERA also provides free information and 20
assists individuals on matters relating to sex and gender discrimination at work and in school. As 21 22 part of its mission, ERA counsels and represents women who have been victims of sexual 23 harassment and/or sexual assault in matters pursuant to Title IX.
24 25. ERA brings this action on its own behalf because the challenged 2017 Title IX Policy
25 (i) requires resource-intensive efforts that divert resources from its daily operations; (ii) limits 26 the efficacy of available avenues of redress to ERA’s clients and others it serves, (iii) increases 27
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Case 3:18-cv-00535-JSC Document 86 Filed 10/31/18 Page 10 of 53
1 the costs ERA bears in its work on behalf of student survivors of sexual violence; and (iv)
2 otherwise directly conflicts with, impairs, and frustrates ERA’s organizational mission and 3 programmatic priorities. 4
26. ERA has had to expend resources over and above what it would otherwise have expended 5 6 in order to counteract the effects of the 2017 Title IX Policy change. For example, to counteract 7 the effects of the Title IX policy change, ERA has had to divert staff time and resources away 8 from core programmatic activities, such as litigating employment-related civil rights
9 enforcement cases and cases involving Title IX enforcement that do not relate to sexual violence 10 in schools, in order to step up its efforts to assist victims of sexual harassment and assault in 11 educational settings obtain redress. In particular, ERA has launched a national initiative to End 12
Sexual Violence in Education (“ESVE”) to narrow a justice gap for survivors of sexual violence 13 14 that ERA has observed is expanding rapidly given the unlawful actions Defendants have taken. 15 Through the ESVE Initiative, which was launched as a result of the Department’s 2017 Title IX 16 Policy change, ERA is expanding its Advice & Counseling program, re-designing its intake
17 process, and developing new resources to better reach and serve individuals facing sexual 18 harassment and violence in schools. Additionally, as part of ESVE and in order to counteract the 19 negative impact of policy changes and rollbacks at the federal level on ERA’s clients and the 20
communities it serves, ERA is expending resources and diverting resources away from core 21 22 programmatic activities in order to establish a network of attorneys to provide pro bono 23 counseling and other assistance to victims of sexual harassment and assault in schools. In order
24 to recruit, train, and support these pro bono attorneys and to meet the increased demand for legal
25 assistance in this area, ERA created a new position and hired its first-ever Pro Bono Coordinator. 26
27
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1 It also is planning to build a new website where advocates for survivors can find and share
2 resources with each other. 3 27. Moreover, as an organization that has a longstanding history of providing direct 4
assistance and referral services to survivors of sexual violence, ERA is hampered in its ability to 5 6 assist the victims of sexual harassment and assault that it represents and counsels in obtaining 7 equitable outcomes and redress for the harms they have suffered. In particular, and as discussed 8 more fully below, the 2017 Title IX Policy permits schools to offer asymmetric appellate rights
9 that disadvantage victims of sexual harassment, including sexual assault; tells schools to make 10 interim safety measures, such as no-contact orders, available on “equal terms” to complainants 11 and respondents during the pendency of an investigation without any allegation that the 12
complainant committed any misconduct or may have done something that undermines the 13 14 respondent’s sense of safety; permits schools to evade responsibility for protecting students and 15 the school community as a whole by resolving claims of sexual assault privately through 16 mediation; and rolls back other critical protections for survivors that inhibit ERA’s ability to
17 obtain redress and achieve results for its clients. 18 28. Plaintiff Victim Rights Law Center (“VRLC”) is a non-profit organization with 19 locations in Oregon and Massachusetts dedicated solely to serving the legal needs of rape and 20
sexual assault victims. VRLC’s mission is to provide legal representation to victims of rape and 21 22 sexual assault to help rebuild their lives and to promote a national movement committed to 23 seeking justice for every rape and sexual assault victim.
24 29. VRLC provides legal free, comprehensive services to help restore victims’ lives after
25 experiencing sexual violence, ensuring that survivors may stay in school; protecting their 26 privileged and confidential mental health, medical, and education records; preserving their 27
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1 employment; maintaining safe housing; securing their immigration status; and swiftly accessing
2 victim compensation and other benefits. As part of its work, VRLC provides legal services 3 and/or facilitates the provision of legal services to individuals who have experienced sexual 4
violence and/or assault on elementary, secondary, and higher education campuses. With almost 5 6 50 percent of VRLC’s clients under the age of 24, a substantial portion of its practice is 7 providing education-related legal consultation and representation. VRLC attorneys represent 8 campus victims to communicate effectively with campus administrators, acquire interim
9 measures and accommodations to secure their education, prepare and attend disciplinary 10 hearings, file appeals, and, if necessary, file complaints with the Department of Education, 11 Office of Civil Rights (“OCR”). 12
30. VRLC brings this action on its own behalf because, as detailed below, the challenged 13 14 Title IX policy concretely frustrates its mission and purpose through (among other things) 15 (i) requiring resource-intensive efforts that impede its daily operations, (ii) impairing its mission 16 of providing legal assistance to survivors of sexual assault and/or violence, (iii) limiting the
17 efficacy of available avenues of redress for the population it seeks to serve, (iv) requiring that 18 resources be diverted in order to combat the harmful effects of the Title IX policy, and (v) 19 otherwise directly conflicts with, impairs, and frustrates VRLC’s organizational mission and 20
priorities. 21 22 31. The new 2017 Title IX Policy has been devastating to VRLC’s mission and its 23 operational activities. For example, as result of the 2017 Title IX Policy, sexual violence and
24 assault victims have expressed an unwillingness to report harassment and assault to campus
25 authorities, denying VRLC the ability to achieve its mission. VRLC saw an immediate chilling 26 effect after the Department issued its 2017 Dear Colleague letter and new Title IX policy. VRLC 27
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1 has seen a decline in the number of sexual violence and assault survivors willing to pursue
2 justice through campus processes. The 2017 Title IX Policy makes it less likely for VRLC clients 3 to engage in the campus process due to, among other particulars, its endorsement of one-sided 4
appeal rights and a heightened standard of evidence that disfavors survivors and makes findings 5 6 of responsibility for sexual assault and violence more onerous. Moreover, as a result of the new 7 Title IX policy, there has been a decline in the number of survivors willing to file complaints 8 with the Department of Education and/or otherwise communicating with the Department of
9 Education where there is already an investigation pending. Such declines in reporting and 10 hesitance to participate in the grievance process either through educational institutions or at the 11 Department of Education directly threaten and frustrate VRLC’s mission and purpose. 12
32. In addition to chilling and discouraging sexual violence and assault victims from availing 13 14 themselves of campus processes, the new Title IX policy has made it more difficult for VRLC to 15 provide appropriate legal advice that helps its clients weigh their options with the best 16 information, leading to further reductions in reports of sexual violence and assault.
17 33. In cases where a survivor or victim may proceed with a claim (which is rare under the 18 new Title IX policy), VRLC’s mission remains frustrated given the nature of the Title IX policy. 19 In particular, the 2017 Title IX Policy makes it more difficult for VRLC to accomplish its 20
mission of obtaining justice for survivors of sexual violence, both because it makes beneficial 21 22 outcomes less likely for survivors and because even where those outcomes are still available, 23 success will take more staff time and effort. In addition, since the 2017 Title IX Policy no longer
24 requires colleges and universities to resolve reports of sexual violence in a timely fashion, VRLC
25 has observed a trend in educational institutions not responding or not responding as promptly to 26
27
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1 its clients’ complaints. This trend has required VRLC to spend additional staff time and

2 resources that it has not had to spend in the past attempting to get school officials to respond.
3 34. VRLC has also had to devote staff time to reviewing and understanding the 2017 Title IX 4
Policy in order to advise clients in ongoing campus investigations and advocate on their behalf. 5 6 This use of time has decreased the amount of time that it has available to provide legal services, 7 including work on ongoing civil litigation.
8 35. Defendant U.S. Department of Education (“the Department” or “the agency”) is a

9 federal agency headquartered in Washington, D.C. As discussed more fully below, the

10 Department implements Title IX through issuing regulations and guidance documents and is also
11 tasked with administrative enforcement of Title IX, 20 U.S.C. § 1682. As a federal agency, the 12
Department is subject to the requirements of the Administrative Procedure Act and the United 13 14 States Constitution.
15 36. Defendant Elisabeth D. DeVos is the United States Secretary of Education. She is sued

16 in her official capacity.

17 37. Defendant Kenneth L. Marcus is the Assistant Secretary for Civil Rights. He is sued in

18 his official capacity.

19
20 38.
21

Background Sexual harassment—which is conduct including, but not limited to, unwelcome sexual

22 advances, requests for sexual favors, and other unwelcome verbal, nonverbal, or physical

23 conduct of a sexual nature that targets someone because of their sex, including sexual assault or

24 other sexual violence (hereinafter “sexual harassment” or “sexual harassment, including sexual

25 violence”)—is widespread in schools across the country, particularly in institutions of higher
26 education. 27

28

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1 39. Sexual harassment disproportionately impacts women and girls. One in five women and

2 one in fourteen men experience sexual assault while in college.3 As the last Administration’s
3 Task Force to Protect Students from Sexual Assault concluded: “For female bisexual and 4
transgender students, victimization rates are even higher: More than 1 in 4 transgender students 5
and more than 1 in 3 of bisexual students experience sexual assault while in college.”4 6 7 40. While sexual harassment on college campuses is more widely known, students of all ages
8 face sexual harassment, including sexual assault. A nationally representative survey of students

9 in grades 7-12 in 2011 concluded that nearly half of the students surveyed experienced some

10 form of sexual harassment that school year, and the majority said that the experience had a
11 negative effect on them.5 Of these students, “[g]irls were more likely than boys to be sexually 12
harassed, by a significant margin.”6 Children who experience sexual violence are nearly 14 times 13

14

15

16 3 The White House, The Second Report of the White House Task Force to Protect Students from

17

Sexual Assault, 9 (Jan. 5, 2017), https://obamawhitehouse.archives.gov/sites/obamawhitehouse. archives.gov/files/images/Documents/1.4.17.VAW%20Event.TF%20Report.PDF. Similarly, a

18

2007 report found that one in five women were victims of sexual assault while in college and that approximately 6.1 percent of men were victims of sexual assault during college. Krebs, et

19 al., The Campus Sexual Assault (CSA) Study Final Report (Oct. 2007), https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf. A report published by the American
20 Association of University Women similarly concluded that: “Girls were more likely than boys to

21

be sexually harassed, by a significant margin (56 percent versus 40 percent) [during the 20102011 school year]. Girls were more likely than boys to be sexually harassed both in person (52

22

percent versus 35 percent) and via text, e-mail, Facebook, or other electronic means (36 percent versus 24 percent). This finding confirms previous research showing that girls are sexually

23 harassed more frequently than boys and that girls’ experiences tend to be more physical and

intrusive than boys’ experiences.” Catherine Hill and Holly Kearl, Crossing The Line, Sexual 24 Harassment at School, American Association of University Women, 2 (2011),

25 https://www.aauw.org/files/2013/02/Crossing-the-Line-Sexual-Harassment-at-School.pdf. 4 The White House, supra note 3 at 9.
26 5 Hill and Kearl, supra note 3 at 2.

27 6 Id.

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1 more likely to experience rape or attempted rape in their first year of college, according to the

2 National Center for Victims of Crime.7
3 41. Experiences of sexual violence harm students physically, psychologically, and 4
academically. Research shows that the effects of sexual assault in high school has consequences 5
that are “delayed and long lasting.”8 Sexually victimized students are more likely to drop classes, 6 7 change residences, and have lower GPAs, creating long-term consequences for professional
8 success and earning potential.9

9 42. Incidents of sexual harassment, including sexual violence, are often underreported,

10 especially on college campuses. For example, the Campus Climate Survey Validation Study
11 found that only 7 percent of students who indicated that they had been raped reported the rape to 12
school authorities.10 13 14 43. If unreported or inappropriately addressed, sexual harassment can continue unchecked
15 and create ongoing hostile environments for those who are the targets of such attacks.

16

17

7 Mark Keierleber, The Younger Victims of Sexual Violence in School, The Atlantic, Aug. 10, 2017, https://www.theatlantic.com/education/archive/2017/08/the-younger-victims-of-sexual-

18 violence-in-school/536418/.

19

8 Dana Bolger, Gender Violence Costs: School’s Financial Obligations Under Title IX, 125, Yale L.J. 2106, 2118 (2016), https://www.yalelawjournal.org/feature/gender-violence-costs-schools-

20

financial-obligations-under-title-ix#_ftnref72 (“Violence—and institutional indifference in its wake—changes the courses of survivors’ lives, with educational and employment consequences

21 following them far into the future.”).

22

9 Victoria L. Banyard et al., Academic Correlates of Unwanted Sexual Contact, Intercourse, Stalking, and Intimate Partner Violence: An Understudied but Important Consequence for

23 College Students, J. of Interpersonal Violence (June 21, 2017),

http://journals.sagepub.com/doi/10.1177/0886260517715022; National Women’s Law Center,

24 Let Her Learn: Stopping School Pushout for Girls Who Have Suffered Harassment and Sexual

25

Violence, 8 (2017), https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wpcontent/uploads/2017/04/final_nwlc_Gates_HarassmentViolence.pdf (finding that 43 percent of

26

girls who are survivors of sexual violence missed 15 days or more of school, compared to 25 percent of girls overall).

27 10 The White House, supra note 3 at 10.

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1

Title IX of the Education Amendments of 1972

2 44. Signed into law by President Nixon, Title IX of the Education Amendments of 1972, 20
3 U.S.C. § 1681, prohibits discrimination on the basis of sex in any federally funded education 4
program or activity. When a recipient institution fails to comply with Title IX or to take action to 5 6 remedy its non-compliance, it can be subject to a range of enforcement actions, including the 7 loss of federal financial assistance. 20 U.S.C. § 1682.
8 45. The Supreme Court has squarely held that sexual harassment, which includes sexual

9 violence, is a form of sex discrimination that Title IX requires schools to address and

10 remediate.11

11

The Department of Education’s Implementation and Enforcement of Title IX

12 46.
13

The U.S. Department of Education is the lead agency charged with enforcing Title IX. It

14 may do so by establishing rules, regulations, and procedures that implement Title IX and define

15 the ways in which educational institutions comply with Title IX’s requirements. See 20 U.S.C.

16 § 1682.

17 47. In 1975, the Department’s predecessor promulgated regulations to effectuate Title IX.

18 See 40 Fed. Reg. 24,128 (June 4, 1975). As amended, those regulations remain in effect today. 19 See 34 C.F.R. pt. 106. Among other things, the regulations incorporate Title IX’s 20
nondiscrimination mandate, see id. § 106.31(a), identify specific actions that constitute 21 22 discrimination, see id. § 106.31(b), and require assurances from recipients of federal financial
23 assistance that their programs and activities comply with regulatory requirements, see id.

24 § 106.4(a).

25

26 11 See, e.g., Franklin v. Gwinnett Cnty Public Schools, 503 U.S. 60, 75 (1992) (citing Meritor

27

Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986); Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998).

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1 48. Recipients found to have discriminated on the basis of sex must “take such remedial

2 action as the Assistant Secretary [for Civil Rights] deems necessary to overcome the effects of
3 such discrimination.” Id. § 106.3(a). 4
49. The regulations require that recipients “adopt and publish grievance procedures providing 5 6 for prompt and equitable resolution” of student and employee complaints of sexual 7 discrimination, including sexual assault and other forms of sexual harassment. Id. § 106.8(b).
8 Such grievance procedures are designed to facilitate the reporting and resolution of complaints of

9 such sex discrimination so as to prevent and remedy hostile environments on campus.

10 50. These same regulations require that educational institutions “designate at least one
11 employee”—commonly known as a Title IX coordinator—“to coordinate its efforts to comply 12
with and carry out its responsibilities” under Title IX, including any investigation of any 13 14 complaint of sexual discrimination, including sexual violence and other forms of sexual
15 harassment. Id. § 106.8(a).

16 51. In addition to promulgating Title IX’s implementing regulations, the Department has

17 issued a series of guidance documents that explain the obligations recipient schools and

18 universities are required to take under Title IX.

19 20
52. 21

The 1997 Sexual Harassment Guidance The first of such guidance documents addressing educational institutions’ obligations to

22 address sexual harassment, titled Sexual Harassment Guidance: Harassment of Students by

23 School Employees, Other Students, or Third Parties, was published in 1997 after a public notice

24 and comment period and “extensive consultation with interested parties, [including] students,

25 teachers, school administrators, and researchers.” See 61 Fed. Reg. 42,728 (Aug. 16, 1996), 61
26 Fed. Reg. 52,172 (Oct. 4, 1996), and 62 Fed. Reg. 12,034, 12,035 (Mar. 13, 1997) (“1997 27

28

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1 Guidance”). The 1997 Guidance provided information regarding the standards used by the
2 Department’s Office for Civil Rights (“OCR”) to investigate student complaints regarding 3 educational institutions’ responses to sexual harassment perpetuated by school employees, other 4
students (peers), or third parties. 5 6 53. The 1997 Guidance set forth principles for how educational institutions should address 7 sexual harassment in the educational setting. It noted that schools “are required by the Title IX 8 regulations to adopt and publish grievance procedures providing for prompt and equitable
9 resolution of sex discrimination complaints, including complaints of sexual harassment, and to 10 disseminate a policy against sex discrimination.” Id. at 12,040. 11 54. With respect to “informal mechanisms” for resolving complaints, the 1997 Guidance 12
explained that they may be used by mutual consent of the parties but that it was inappropriate for 13 14 a complaining student to be required to work out the problem directly with the individual 15 accused of harassment and that mediation would be inappropriate even on a voluntary basis in 16 cases that involve sexual assault. Id. at 12,045.
17 55. The 1997 Guidance further explained that, during an investigation of a complaint, a 18 school may take appropriate interim and remedial measures, such as placing the involved 19 students in separate classes or in different housing arrangements. The touchstone for these 20
measures was that they “be designed to minimize, as much as possible, the burden on the student 21 22 who was harassed.” Id. at 12,043. 23 56. The 1997 Guidance also made clear that, beyond temporary interim accommodations, a
24 school “may be required to provide . . . services to the student who was harassed if necessary to
25 address the effects of the harassment on that student.” Such service might include tutoring and 26 mental health counseling. Id. 27
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1 57. The 1997 Guidance set forth factors that OCR would consider in evaluating whether a

2 school’s grievance procedures were “prompt and equitable,” noting that “many schools …
3 provide an opportunity to appeal the findings or remedy or both.” Id. at 12,044. 4
58. The 1997 Guidance explained that other legal or adjudicatory processes could not 5 6 substitute for a school’s own processes. For example, where possible criminal conduct was 7 involved, a police investigation “may be useful in terms of fact-gathering,” but, “because legal
8 standards for criminal conduct are different, police investigations or reports may not be

9 determinative of whether harassment occurred under Title IX and do not relieve the school of its

10 duty to respond promptly.” Id. at 12,045.

11

The 2001 Revised Sexual Harassment Guidance

12 59.
13

Following the Supreme Court’s 1998 decision in Gebser v. Lago Vista Indep. Sch. Dist.,

14 524 U.S. 274 (1998) and its 1999 decision in Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629

15 (1999), the Department issued revisions to the 1997 Guidance in 2001, entitled Revised Sexual

16 Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third

17 Parties. See 66 Fed. Reg. 5512 (Jan. 19, 2001).
18 60. The 2001 Guidance, which also followed a public notice and comment period, see 62 19
Fed. Reg. 66,092 (Nov. 2, 2000), reaffirms many of the principles set forth in the 1997 20
Guidance. It “explains how the requirements of the Title IX regulations apply to situations 21 22 involving sexual harassment of a student and outlines measures that schools should take to
23 ensure compliance [with Title IX and its implementing regulations].” 2001 Guidance at 4.

24 61. The 2001 Guidance reaffirms the requirement that educational institutions publish

25 grievance procedures “providing for prompt and equitable resolution of sex discrimination 26

27

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1 complaints, including complaints of sexual harassment, and to disseminate a policy against sex
2 discrimination.” Id. at 14. 3 62. The 2001 Guidance further provides that “[o]nce a school has notice of possible sexual 4
harassment of students—whether carried out by employees, other students, or third parties—it 5 6 should take immediate and appropriate steps to investigate or otherwise determine what occurred 7 and take prompt and effective steps reasonably calculated to end any harassment, eliminate a 8 hostile environment if one has been created, and prevent harassment from occurring again.” Id.
9 at 15. 10 63. The 2001 Guidance specifies a number of factors that would be considered in 11 determining whether an educational institution’s grievance procedures were “prompt and 12
equitable,” as required by Title IX and the Department’s implementing regulations, including, as 13 14 in the 1997 Guidance, the acknowledgment that many schools “provid[ed] an opportunity to 15 appeal the findings or remedy or both.” Id. at 20. 16 64. The 2001 Guidance also reaffirms that although informal resolution of complaints might
17 be appropriate in some cases, OCR had “frequently advised schools” that “mediation” or other 18 informal resolution would not be appropriate in the context of some forms of sexual harassment, 19 such as sexual assault, even on a voluntary basis. Id. at 21. 20
65. The 2001 Guidance also reiterates the importance of interim measures discussed in the 21 22 1997 Guidance, stressing that such measures “should be designed to minimize, as much as 23 possible, the burden on the student who was harassed.” Id. at 16.
24 66. Like the 1997 Guidance, the 2001 Guidance made clear that, after an investigation has
25 concluded, a school “may be required to provide. . . services to the student who was harassed if 26 necessary to address the effects of the harassment on that student.” Id. at 16-17. 27
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1 67. The 2001 Guidance cautions schools, as did the 1997 Guidance, about relying on police

2 or insurance company investigations as a substitute for their own processes, again emphasizing
3 the different purposes and legal standards applicable in those third-party investigations. Id. at 21. 4
68. Finally, the 2001 Guidance notes that both employees and students of public schools and 5 6 universities are entitled to certain Constitutional due process protections, and that the rights 7 established under Title IX must be interpreted consistent with any federally guaranteed due
8 process rights involved in a complaint proceeding. The guidance instructed, however, that

9 recipients should ensure that “steps to accord due process rights do not restrict or unnecessarily

10 delay the protections provided by Title IX to the complainant.” Id. at 22.

11

The 2011 Dear Colleague Letter and 2014 Q&A Document

12 69.
13

Even with the Department’s enforcement and guidance activities, sexual harassment,

14 including sexual violence, has remained a pervasive problem on campuses and in schools across

15 the country.

16 70. In the wake of these ongoing challenges, educational institutions solicited assistance from

17 the Department of Education in further understanding their obligations under Title IX in regard
18 to sexual harassment, particularly sexual violence. Thereafter, in 2011, the Department issued a 19
“Dear Colleague Letter on Sexual Violence” and, in 2014, a set of Questions and Answers to 20
respond to additional concerns raised by schools and students.12 21 22 71. Citing the “deeply troubling” statistics concerning sexual violence on campuses, the 2011
23 Dear Colleague Letter provided clarity on how schools should address peer-on-peer sexual

24

25 12 See U.S. Dep’t of Educ., Ltr. from Ass’t Sec’y Russlynn Ali (Apr. 4, 2011),

26 https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf (“2011 Dear Colleague

27

Letter”); U.S. Dep’t of Educ., Questions and Answers on Title IX and Sexual Violence (Apr. 29, 2014), https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (“2014 Q&A”).

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1 harassment, including sexual violence, as well as steps that schools could take to respond in
2 accordance with the Department’s regulations and 2001 Guidance. 3 72. The 2011 Dear Colleague Letter reiterated, consistent with the 2001 Guidance, the 4
importance of schools offering services to survivors, such as tutoring and mental health care, to 5 6 ensure that they can continue to learn in the wake of sexual harassment, including sexual 7 violence. 2011 Dear Colleague Letter at 15-17. It noted, again consistent with the 2001 8 Guidance, that necessary accommodations may include interim remedies to protect the
9 complainant during the investigation. Id. at 15. 10 73. As in the 2001 Guidance, the 2011 Dear Colleague Letter discussed what constitutes a 11 prompt and equitable adjudication. The 2011 Dear Colleague Letter also made clear that Title IX 12
requires schools to provide complainants and respondents equal rights and opportunities 13 14 throughout an investigation and any appellate process. Id. at 12. 15 74. The 2011 Dear Colleague Letter also discouraged schools from allowing a complainant 16 and alleged perpetrator to directly cross-examine each other. As the guidance explained,
17 “[a]llowing an alleged perpetrator to question an alleged victim directly may be traumatic or 18 intimidating, thereby possibly escalating or perpetuating a hostile environment.” Id. at 12. 19 75. The 2011 Dear Colleague Letter reiterated the ongoing policy expressed in the 2001 20
Guidance that mediation is an inappropriate way to resolve sexual violence complaints. Id. at 8. 21 22 76. The 2011 Dear Colleague Letter also discussed, in response to questions that school 23 administrators had posed, the burden of proof that recipient schools should use in investigating
24 complaints of sexual assault. The 2011 Dear Colleague Letter explained that, in investigating
25 Title IX complaints, OCR reviews a school’s grievance procedures to determine whether a 26 school uses preponderance of the evidence as the complainant’s burden of proof. It explained 27
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1 that this burden appropriately reflected the burden used in litigation under Title VII of the Civil
2 Rights Act of 1964, to which courts have looked in construing Title IX, as well as the burden 3 used by OCR in investigating Title IX complaints against recipients of federal funding. Id. at 11. 4
77. Also consistent with the 2001 Guidance, the 2011 Dear Colleague Letter reiterated that 5 6 public and state-supported schools must provide due process protections to an alleged 7 perpetrator. Id. at 12. 8 78. In 2014, the Department issued further clarifications consistent with its previously issued
9 guidance in response to questions that it received from schools and colleges in the form of a 10 Questions and Answers document (“2014 Q&A”). The 2014 Q&A provided examples of 11 proactive efforts schools could take to prevent sexual violence and remedies schools could use to 12
end such conduct, prevent its recurrence, and address its effects. 13 14 79. Among other things, the 2014 Q&A further discussed Title IX’s mandate that schools 15 take steps to ensure equal access to educational programs and activities, including by protecting 16 a complainant with interim measures pending resolution of a complaint. Such measures should
17 allow the complainant to avoid contact with the alleged perpetrator and “to change academic and 18 extracurricular activities or his or her living, transportation, dining, and working situations as 19 appropriate.” 2014 Q&A at 32. This requirement is consistent with the 2001 Guidance’s 20
emphasis on Title IX’s mandate to take immediate steps once a complaint is filed to eliminate 21 22 any hostile environment and prevent harassment from occurring again. Id. at 32-33; see also 23 2001 Guidance at 12.
24 80. The 2014 Q&A also emphasized that schools should provide the same rights and
25 opportunities to complainants and respondents. 2014 Q&A at 26. 26
27
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1 81. The 2011 Dear Colleague Letter and the 2014 Q&A did not reflect any policy change, but

2 rather reminded schools of longstanding statutory and regulatory obligations to address sexual
3 harassment, including sexual violence, while providing more details and examples of how to do 4
so. Both documents were the product of the Department’s consideration of the standards that 5 6 OCR had relied on in dozens of investigations and reflected the input of students, faculty, 7 administrators, staff, attorneys, Sexual Assault Response Teams (“SARTs”), counselors, student
8 advocates, medical personnel, parents, law enforcement, prosecutors, and campus police.

9

The Trump Administration’s Change in Title IX Policy

10 82. Following his inauguration, President Trump appointed Secretary DeVos to lead the
11 Department of Education. In April 2017, Secretary DeVos selected Candice Jackson to serve as 12
Deputy Assistant Secretary and to lead OCR as Acting Assistant Secretary for Civil Rights. 13 14 83. Secretary DeVos and Ms. Jackson have repeatedly criticized the protections that Title IX
15 affords to women and other survivors of sexual harassment, including sexual violence. Much of

16 that criticism has been based on discriminatory stereotypes and unfounded generalizations about

17 female students in general and female victims of sexual violence in particular. There is a
18 longstanding and inaccurate stereotype that women and girls tend to lie about or misunderstand 19
sexual assault and harassment. For example, a recent study published in the Psychology of 20
Violence determined that police routinely rely on rape myths, such as that the victim was lying 21 22 or that the victim had given consent, in judging whether a case should be referred to a
23 prosecutor.13 Secretary DeVos’ and Ms. Jackson’s statements and actions reveal that their

24

25 13 See Romeo Vitelli, Rape Myths and the Search for True Justice, Psychology Today, Oct. 26,

26

2017, https://www.psychologytoday.com/us/blog/media-spotlight/201710/rape-myths-and-thesearch-true-justice (citing and linking to Psychology of Violence study, Jessica Shaw, et al.,

27 Beyond Surveys and Scales: How Rape Myths Manifest in Sexual Assault Police Records, 7(4) Psychology of Violence 602 (Oct. 2017)); .”); Critical Issues on Violence Against Women:

28

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1 decision-making regarding the 2017 Title IX Policy was motivated at least in part by these

2 stereotypes.
3 84. For example, Ms. Jackson has repeatedly criticized core civil rights achievements, such 4
as legal protections against sexual harassment. In a book she published in 2005, Ms. Jackson 5 6 stated that laws to combat sexual harassment gloss over “the reality that unwanted sexual 7 advances are difficult to define.”14
8 85. Ms. Jackson regularly questions the veracity of sexual harassment and assault claims

9 made by women, stating, for example:

10

[I]t wasn’t enough that women are not legally forbidden anymore from getting an

11

education and entering the workforce. Feminists and other leftists thought the problem of workplace sexual harassment needed a legal remedy. Since sexual

12

harassment is such a nebulous experience, defined so subjectively and turning on

the perceptions of the people involved, laws banning it are difficult to articulate.

13

But they have tried anyway, with the side result that many men self-censor

14

themselves to avoid being accused of sexual harassment, and institutions remove valid expressions of art and learning to avoid “even the appearance of sexual

15

harassment.”15

16 86. In October 2016, a few months before joining the Department, Ms. Jackson stated in a

17 social media post that women who claimed that Donald Trump sexually harassed them were
18 lying “for political gain,” and “evidence is piling up that shows these recent accusers against 19

20

21

22

23

International Perspectives and Promising Strategies 96 (Holly Johnson, et al., eds., Routledge 2015), available at

24

https://books.google.com/books?id=pD62BQAAQBAJ&pg=PA96#v=onepage&q&f=false (“Allegations that women lie about sexual assault are not new. … Despite social advancements

25 in the past several decades regarding rape awareness, negative attitudes and belief in ‘rape myths’ are still pervasive.”).
26 14 Candice Jackson, Their Lives: The Women Targeted by the Clinton Machine (2005), at 138.

27 15 Id.

28

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1 Trump are, frankly, fake victims.16 Ms. Jackson’s post came just days after a tape surfaced of

2 then-candidate Trump expressly bragging about sexually assaulting women.
3 87. Similarly, and for example, in the past, Secretary DeVos has provided substantial 4
financial contributions—a form of speech—to FIRE, an organization that advocates for schools 5 6 to abdicate their responsibility to address sexual violence and instead defer entirely to law 7 enforcement.17 FIRE asserts that the 2011 Dear Colleague Letter “eviscerated due process rights
8 of students and faculty accused of sexual misconduct on campus.”18 FIRE has previously

9 litigated against the Department to weaken Title IX’s protections, including by arguing that the

10 preponderance of the evidence standard, which is used in nearly all civil matters, is unfair to the
11 alleged perpetrator in a Title IX grievance proceeding. 12

13

14

15

16

16 Tyler Kingkade, The Lawyer Who Helped Bill Clinton’s Rape Accusers May Have Scored A Top Civil Rights Job Under Trump, BuzzFeed News, Apr. 3, 2017,

17 https://www.buzzfeednews.com/article/tylerkingkade/the-lawyer-who-helped-clinton-rape-

accusers-may-have-scored#.ej6ZKYBG8X; see also Annie Waldman, DeVos Pick to Head Civil

18 Rights Office Once Said She Faced Discrimination for Being White, Pro Publica (Apr. 14, 2017),

19

https://www.propublica.org/article/devos-candice-jackson-civil-rights-office-educationdepartment.

20 17 Benjamin Wermund, DeVos’ Donations Spark Questions About Her Stance On Sexual Assault,

21

Politico, Jan. 9, 2017, https://www.politico.com/story/2017/01/betsy-devos-education-sexualassault-233376; Alex Morey, Baylor Rape Controversy More Evidence Colleges Unequipped to

22

Decide Sexual Assault Cases, Found. for Individual Rights in Educ. (FIRE), Sept. 14, 2015, https://www.thefire.org/baylor-rape-controversy-more-evidence-colleges-unequipped-to-decide-

23 sexual-assault-cases/.; Robert Shibley, Time to Call the Cops: Title IX Has Failed Campus

Sexual Assault, TIME, Dec. 1, 2014, http://time.com/3612667/campus-sexual-assault-uva-rape-

24 titleix/ (FIRE’s senior vice president arguing that campus responses “encourage[ ] silence or the

25

avoidance of law enforcement” in the wake of the Rolling Stone account of alleged rape at a fraternity house at the University of Virginia).

26 18 Dear Colleague: It’s Over! Education Department Rescinds Controversial 2011 Letter, FIRE,

27

Sept. 22, 2017, https://www.thefire.org/dear-colleague-its-over-education-department-rescindscontroversial-2011-letter/.

28

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1 88. Since they have assumed their current roles at the Department, Secretary DeVos’s and

2 Ms. Jackson’s official actions and statements preceding the 2017 Title IX Policy reveal their
3 discriminatory motivation. 4
89. For example, Secretary DeVos actively solicited the views of those individuals and 5 6 groups that oppose robust Title IX protections and have questioned the veracity of survivors’ 7 experiences. Shortly after assuming her role as Secretary, Secretary DeVos met with State
8 Representative Earl Ehrhart from Georgia—a notorious opponent of Title IX—to discuss, among

9 other topics, Title IX enforcement.19 Representative Ehrhart has pushed a state bill that would

10 require colleges to refer all sexual assault reports to the police, even against a victim’s expressed 11 wishes, a dangerous policy that would discourage reporting by victims. He has also questioned 12
women’s credibility on the experience of sexual assault, accusing one woman of “utilizing a 13 14 victim’s status” for ulterior motives.20 Similarly, during the summer of 2017, Secretary DeVos 15 met with the National Coalition for Men, an organization that has published photos of women
16 who have made complaints of rape, calling them “false victims.”21 This Coalition has referred to

17 rape survivors as “anti-male.” 22 18

19 19 Kathryn Joyce, The Takedown of Title IX, N.Y. Times, Dec. 5, 2017,
20 https://www.nytimes.com/2017/12/05/magazine/the-takedown-of-title-ix.html?_r=0 (“Ehrhart

21

came away from his meeting gratified that DeVos seemed to agree with him on the limited role that federal authorities should play. ‘She’s placing this back where it belongs,’ he told me, ‘in the

22 purview of the states.’”)

23

20 Letter from Nat’l Women’s Law Ctr, et al. to Elisbeth DeVos, Sec’y of Educ., Apr. 17, 2017, https://nwlc.org/wp-content/uploads/2017/04/April-17-2017-Letter-to-Secretary-DeVos.pdf.

24 21 Jessica Valenti, Why is Betsy DeVos Enabling Rape Deniers?, The Guardian, July 14, 2017,

25

https://www.theguardian.com/commentisfree/2017/jul/14/betsy-devos-accused-rapists-meetingssexual-assault.

26 22 Tyler Kingkade, These Democratic Senators Are Blasting Betsy DeVos For Her Approach To

27

Campus Rape, Buzzfeed, July 12, 2017, https://www.buzzfeed.com/tylerkingkade/thesedemocratic-senators-are-blasting-betsy-devos-for-her?utm_term=.sd2GyLb3M#.lvOz57wgB.

28

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1 90. Similarly, Candice Jackson proactively sought out the views and input of those

2 individuals who question the veracity of women and girl’s reports of sexual harassment and
3 assault, as the Defendants developed the new Policy. According to documents released by the 4
Department in response to a Freedom of Information Act request, she had a dinner meeting with 5 6 Chris Perry, Deputy Executive Director of Stop Abusive and Violent Environments (“SAVE”), 7 and others in advance of the release of the 2017 Title IX Policy to discuss the Dear Colleague
8 Letter. SAVE’s mission includes stopping “false accusations” of sexual assault, and its website

9 repeats a discredited and aberrational study that concluded that 41% of rape claims are false.23

10 91. FOIA records also show that in May 2017, Ms. Jackson telephoned Gordon E. Finley
11 regarding his writing on issues related to sexual assault. Mr. Finley is a member of the National 12
Coalition for Men and a professor at Florida International University who opines frequently on 13 14 sexual harassment and assault, including essays such as “Sex: The New War on Men,”24 and “A
15 false accusation can spell the end of a college male’s future,” which relies on studies that assert

16 (incorrectly) that rates of false allegations regarding rape and other sexual abuse range from 41

17 to 62 percent. 25 In an email response, after thanking Ms. Jackson for her “kind call” and saying

18

19 23 SAVE, Falsely Accused of Sexual Assault, http://www.saveservices.org/dv/falselyaccused/sex-assault/; see SAVE, Ten Myths of Campus Sexual Assault,
20 http://www.saveservices.org/sexual-assault/ten-myths/.

21

24 Gordon E. Finley, Sex: The New War on Men, Nat’l Coal. for Men, May 12, 2014, https://ncfm.org/2014/05/action/ncfm-advisor-gordon-finley-ph-d-sex-the-new-war-on-men/

22 (“Sexual allegations made by females are not taken as allegations but rather as ‘settled fact.’

These claims do not even consider the possibility that women might lie about any manner of

23 things sexual …” and “The former definition of forcible rape has morphed into anything sexual

24

without “consent” and with the determination of “consent” left entirely up to the woman, even to be determined on the morning after.”).

25 25 See NCFM Adviser Gordon Finley Letter, “A False Accusation Can Spell the End of College

26

Male’s Future,” Published in the Boston Globe, Nat’l Coal. for Men, Oct. 18, 2014, https://ncfm.org/2014/10/news/discrimination-news/discrimination-against-men-news/ncfm-

27

adviser-gordon-finley-letter-a-false-accusation-can-spell-the-end-of-college-males-futurepublished-in-the-boston-globe/.

28

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1 “[i]t’s always nice to know that someone actually reads what you write,” Mr. Finley directed Ms.

2 Jackson to additional of his writings, including the two previously identified.
3 92. Ms. Jackson was also in regular email contact with Cynthia Garrett, co-President of 4
Families Advocating for Campus Equality (“FACE”), and others at FACE, regarding the 5 6 Department’s Title IX policy. FACE, which is comprised primarily of mothers of boys and men 7 who have been accused of sexual harassment and assault, “advocate[es] for the rights of falsely
8 accused students.”26 One of these FACE members told the New York Times of her son’s

9 expulsion for having sex with a student who was too intoxicated to give consent, “[i]n my

10 generation, what these girls are going through was never considered assault . . . It was
11 considered, ‘I was stupid and I got embarrassed.’”27 12
93. Ms. Jackson coordinated with Ms. Garrett regarding a letter campaign from FACE 13 14 members to the Department regarding the Department’s Title IX sexual violence policy. By and
15 large, these letters presented stories of supposedly false accusations of sexual assault or

16 harassment by women or girls against boys and men. Ms. Jackson also requested that FACE

17 publish numerous op-eds regarding the Department’s Title IX policy in advance of Secretary

18 DeVos’s September 2017 speech on the Department’s Title IX policy. 19 94. In contrast to the Department’s solicitation of persons and organizations with views that 20
female sexual assault survivors are prone to exaggerate or fabricate accusations, the Department 21 22 met with organizations that advocate for Title IX’s protections for survivors only after repeated,
23 collective requests from those organizations. Plaintiffs, along with other organizations that

24 advocate for Title IX’s protections for sexual assault survivors, sent Secretary DeVos a letter in

25 26 FACE, Title IX’s Other Victims, https://www.facecampusequality.org/ourstories/.

26 27 Anemona Hortocollis & Christina Capecchi, ‘Willing to Do Everything,’ Mothers Defend Sons

27

Accused of Sexual Assault, N.Y. Times, Oct. 22, 2017, https://www.nytimes.com/2017/10/22/us/campus-sex-assault-mothers.html.

28

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1 April 2017 urging her to consider the views of sexual assault survivors and groups dedicated to

2 survivors’ rights, as opposed to the biased and extreme views held by Mr. Ehrhart and others.28
3 While Department decisionmakers did eventually meet with SurvJustice and others representing 4
the views of sexual violence survivors, one survivors’ rights group, Know Your IX, was 5 6 disinvited after its co-founders published an op-ed critical of the Office for Civil Rights. 7 95. The views of individuals arguing that women tend to lie about sexual harassment and
8 assault, especially in educational settings, influenced and infected the Department’s decision-

9 making. For example, FOIA records show that on July 18, 2017, Candice Jackson discussed a

10 book titled “Unwanted Advances: If this is feminism, it’s feminism hijacked by melodrama”
11 with OCR staff and remarked on “how helpful it has been in reference to the issues we are 12
discussing.” In an email to Department colleagues attaching a summary of the book and 13 14 referencing Ms. Jackson’s favorable view of it, OCR’s Confidential Assistant instructed the
15 group, “[i]t is imperative that we all read either the summary or the book . . . before tomorrow’s

16 meeting.” The attached book summary included the following statements:

17

The existing Title IX guidance from the Department was motivated by “an ill-

18

conceived effort to protect women students from a rapidly growing catalogue of sexual bogeymen.”

19

“Sexual paranoia has converted the Title IX bureaucracy into an insatiable

20

behemoth, bloated by its own federal power grab, though protests are few

because—what are you, in favor of rape culture or something?”

21

“It turns out that rampant accusation is the new norm on today’s campus; the

22

place is a secret cornucopia of accusation, especially when it comes to sex.”

23

“[W]e seem to be breeding a generation of students, mostly female students,

24

deploying Title IX to remedy sexual ambivalences or awkward sexual experiences, and to adjudicate relationship disputes post-breakup—and campus

25

administrators are allowing it.”

26

27 28 Letter from Nat’l Women’s Law Ctr, et al., supra note 20. 28

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1

“[A]ny number of other cases I learned about: astounding levels of bias against

accused men, inventive deployments of the preponderance standard, and female

2

complainants with ambiguous motives. I don’t wish to betray my gender, but the

3

premise that accusers don’t lie turns out to be mythical. By sentimentalizing women in such preposterous ways, aren’t Title IX officials setting schools up as

4

cash cows for some of our more creatively inclined women students?”

5 96. Although Title IX affords protections to all victims of discriminatory conduct on the

6 basis of sex, Secretary DeVos and Ms. Jackson have criticized the protections that civil rights
7 laws, such as Title IX, afford to women, continuing to base their statements on stereotypes about 8
college women and women who are survivors of sexual harassment, including sexual assault, as 9 10 fabricators and exaggerators.
11 97. In a July 2017 article in the New York Times, in which Ms. Jackson was quoted, she

12 publicly propounded discriminatory stereotypes of women who survive sexual assault.

13 Regarding investigations conducted by schools and universities to identify and remedy unlawful

14 sexual violence and other forms of harassment, she echoed many of the views expressed by

15 groups and individuals from whom she sought input:

16

[In most investigations there’s] not even an accusation that these accused students

17

overrode the will of a young woman. Rather, the accusations—90 percent of

18

them—fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just

19

decided that our last sleeping together was not quite right.’29

20 98. In September 2017, Secretary DeVos gave a speech on campus sexual harassment,

21 including sexual violence, at George Mason University. In her remarks, she cited a number of
22 examples where students, particularly male students accused of sexual violence, were allegedly 23
treated unfairly by their schools. She used these examples to justify rescinding the 2011 Dear 24

25 29 Erica L. Green & Sheryl Gay Stolberg, Policies Get a New Look as the Accused Get DeVos’s

26 Ear, N.Y. Times, July 13, 2017 (emphasis added),

27

https://www.nytimes.com/2017/07/12/us/politics/campus-rape-betsy-devos-title-iv-educationtrump-candice-jackson.html.

28

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1 Colleague Letter and 2014 Q&A.30 Yet these anecdotes involve problems that arose because

2 schools did not follow the then-existing guidance, and therefore do not support rescission of that
3 guidance. Moreover, many of the anecdotes used by Secretary DeVos in her speech were 4
misleading and/or untrue, in that they recounted supposed facts that the parties to the incident 5 6 disputed. 7 99. Secretary DeVos’s September 2017 speech presented as equally problematic the harm
8 faced by sexual violence survivors and the harm faced by individuals who have been falsely

9 accused, despite a lack of evidence that the latter is a widespread problem extending beyond a

10 few occurrences, unlike the former.31 Rather than recognizing that false accusations are rare,
11 Secretary DeVos presented the problem of false accusations as rampant. On the contrary, 12
research shows that the prevalence of false allegations of sexual assault is very low—false 13 14 accusations regarding criminal sexual assault, for example, are estimated at 2-10 percent.32
15 100. Secretary DeVos also asserted that the loss of due process protections for alleged

16 perpetrators is a widespread problem on school campuses, mentioning “due process” ten times

17 during the speech. She also claimed that “the system established by the prior administration” was
18 responsible for creating “victims of a lack of due process”.33 19

20

21

22 30 See Elisabeth DeVos, Sec’y of the U.S. Dep’t of Educ., Remarks on Title IX Enforcement at

23 George Mason University (Sept. 7, 2017), https://www.ed.gov/news/speeches/secretary-devos-

prepared-remarks-title-ix-enforcement (“DeVos Remarks”). 24 31 See DeVos Remarks.

25 32 David Lisak, et al., False Allegations of Sexual Assault: An Analysis of Ten Years of Reported

26

Cases, 16(12) Violence Against Women 1318, 1330 (2010), https://icdv.idaho.gov/ conference/handouts/False-Allegations.pdf.

27 33 DeVos Remarks.

28

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1 101. Secretary DeVos also expressed doubt about the seriousness of sexual harassment claims,
2 saying, “[I]f everything is harassment, then nothing is.”34 This statement, among other things, 3 minimizes the full range of sexual harassment and its impact on women and girls, including 4
deprivation of their access to education. 5 6 102. Secretary DeVos’s and Ms. Jackson’s statements are consistent with and reveal their 7 discriminatory belief, based on gender stereotypes, that many girls and women who report sexual 8 harassment misunderstood a harmless romantic advance and that those who report sexual
9 violence often are either lying or have regret about a consensual sexual encounter. 10 103. Other politically appointed Department of Education officials have similar doubts about 11 the veracity of sexual harassment and violence claims. For example, Adam Kissel, previously 12
Deputy Assistant Secretary for Higher Education Programs, has criticized affirmative consent 13 14 policies adopted on college campuses through his Twitter account, stating in February 2017, 15 “The new OCR [Office of Civil Rights, Department of Education] will start to fix this.” Mr. 16 Kissel has also criticized the “preponderance of evidence” standard because it will lead, in his
17 view, to “more guilty verdicts,” apparently referring to campus findings of responsibility. He has 18 also criticized antidiscrimination policies preventing sexual harassment. 19 104. This discriminatory mindset not only has motivated decisionmakers at the Department; it 20
flows from the top of the Executive Branch. President Trump’s actions and statements reveal his 21 22 discriminatory and stereotyped views of women, and particularly women’s veracity regarding 23 claims of sexual harassment, including violence. For example, during his campaign for President,
24 Donald Trump called women who have made accusations of sexual harassment and assault
25 against him “phony accusers” who have made such reports to get “some free fame.” He has 26
27 34 DeVos Remarks. 28
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1 called sexual harassment reports against him by women “a total setup” and the women who

2 made those reports, “horrible.”35
3 105. Mr. Trump has bragged about sexually assaulting women on audiotape, but continues to 4
deny the experiences of women and girls who have experienced sexual assault. He asserted that 5 6 “every woman lied when they came forward” regarding alleged sexual harassment by him, and 7 that all of the women “liars will be sued after the election is over.” 36
8 106. This discriminatory and stereotyped view of women and girls has become de facto White

9 House policy, as the White House has asserted in an official statement that at least 16 women

10 who had accused the President of sexual harassment were lying.37
11 107. The Administration’s disbelief of women and girls and disregard for gender-based 12
violence is also evident from the employment of multiple White House staff members who have 13 14 been accused of abusing their female partners. It has been widely reported that now-former
15 White House staff secretary Rob Porter was elevated within the White House despite law

16 enforcement investigations concerning multiple reports of his abuse of women.38 After the

17 reports of Mr. Porter’s abuse were made public, President Trump has defended Mr. Porter, and

18

19 35 Ryan T. Beckwith, Read Donald Trump’s Speech Attacking His Accusers, TIME, Oct. 14, 2016, http://time.com/4532181/donald-trump-north-carolina-accusers-speech-transcript/.
20 36 Ben Jacobs, Trump Uses Gettysburg Address to Threaten to Sue Sex Assault Accusers, The 21 Guardian, Oct. 22, 2016, https://www.theguardian.com/us-news/2016/oct/22/donald-trump-
gettysburg-contract-with-america-sue-accusers-hillary-clinton. 22 37 John Wagner, All of the Women Who Have Accused Trump of Sexual Harassment Are Lying, 23 the White House Says, Wash. Post, Oct. 27, 2017, https://www.washingtonpost.com/news/post-
politics/wp/2017/10/27/all-of-the-women-who-have-accused-trump-of-sexual-harassment-are24 lying-the-white-house-says/?utm_term=.79b67a7a3a2b.

25 38 Mr. Porter’s reported abuse of women is well documented; in 2010, a court issued a protective order against him, finding “reasonable grounds” to believe that Mr. Porter committed domestic

26 abuse towards his wife at the time, Jennifer Willoughby, and “probable danger” of the abuse

27

occurring. Reports and evidence concerning Mr. Porter’s abuse of women are among the things that prevented Mr. Porter from obtaining a permanent security clearance.

28

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1 White House Chief of Staff John Kelly stated that Mr. Porter is a man of “integrity.” Mr.

2 Porter’s resignation was followed by the resignation of another senior White House official,
3 David Sorensen, who also has been accused of gender-based violence. 4
108. Following these resignations, President Trump issued a statement in the form of a 5 6 tweet: “Peoples [sic] lives are being shattered and destroyed by a mere allegation,” he wrote. 7 “There is no recovery for someone falsely accused—life and career are gone. Is there no
8 such thing any longer as Due Process?”39

9 109. More recently, President Trump mocked Christine Blasey Ford, who accused now-Justice

10 Brett Kavanaugh of sexual assault. In a speech in Mississippi, Trump questioned Dr. Ford’s
11 recollection of the incident, which she reports occurred several decades ago. Later, the President 12
confirmed that he doubted Dr. Ford’s report of sexual assault, saying “I was just saying she 13 14 didn’t seem to know anything.”40
15 110. President Trump also claimed that two women who confronted Senator Jeff Flake in an

16 elevator with stories of their own sexual assaults during now-Justice Kavanaugh’s confirmation

17 hearings were “paid professionals.”41
18 111. On October 2, 2018, President Trump again addressed Dr. Ford’s allegations that now19 Justice Kavanaugh sexually assaulted her, calling it “a very scary time for young men in 20
America.” He added that “[w]omen are doing great.”42 21

22

23 39 Donald Trump (@realDonaldTrump), Twitter (Feb. 10, 2018), https://twitter.com/

24 realDonaldTrump/status/962348831789797381.

25

40 Alex Johnson, Trump Defends Mockery of Christine Blasey Ford, Says It Got Kavanaugh Confirmed, NBC News, Oct. 15, 2018, https://www.nbcnews.com/politics/donald-trump/trump-

26 defends-mockery-christine-blasey-ford-says-it-got-kavanaugh-n919986.

41 Donald Trump (@realDonaldTrump), Twitter (Oct. 5, 2018), 27 https://twitter.com/realDonaldTrump/status/1048196883464818688.

28

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1 112. The Trump Administration’s animus towards women gives license to and encourages

2 Executive branch decisionmakers who share the same discriminatory views to perpetuate those
3 views in their work. 4
113. The Department’s revised Title IX policy, described in detail in the paragraphs that 5 6 follow, was motivated by discriminatory and unfounded stereotypes about the women and girls 7 who come forward to report sexual assault and harassment. Consistent with this view, the new
8 policy removes protections for survivors, the majority of whom are female, and does so in order

9 to make it more difficult for these women and girls to obtain relief via a school’s Title IX process

10 and to discourage them from making Title IX reports to their schools in the first place.

11

2017 Title IX Policy

12 114. On September 22, 2017, the Department issued a new Dear Colleague Letter (“2017 Dear
13

14 Colleague Letter”), rescinding the 2011 Dear Colleague Letter and 2014 Q&A.43 The 2017 Dear

15 Colleague Letter also provides new information about how the Department will assess an

16 educational institution’s compliance with Title IX through a set of Questions and Answers.44

17 Together, these documents set forth the Department’s revised Title IX policy (“2017 Title IX
18 Policy”). 19
115. The 2017 Title IX Policy departs dramatically from the 2011 and 2014 guidance 20
documents. The 2017 Title IX Policy does not simply rescind the 2011 Dear Colleague Letter 21 22 and 2014 Q&A. Instead, it affirmatively contradicts Department policies that the 2017 Title IX
23 Policy supposedly kept in effect, including the 2001 Guidance.

24 42 Luke Barnes, Trump Says It’s A ‘Very Scary Time for Young Men’, ThinkProgress, Oct. 2, 25 2018, https://thinkprogress.org/trump-kavanaugh-very-scary-time-for-young-men-in-america-
e8ed567bc365/. 26 43 See 2017 Dear Colleague Letter. 27 44 See 2017 Q&A.
28

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1 116. The 2017 Title IX Policy, among other changes from existing law, imposes the following

2 requirements on schools that weaken protections for sexual harassment survivors:

3



prohibits educational institutions from issuing interim measures that benefit

4 complainants by minimizing the burden on these students, such as modifications to their work
5

6 and class schedules or to housing assignments, thereby increasing the risk that survivors of

7 sexual harassment are isolated from their support networks in the aftermath of their experience,

8 see 2017 Q&A at 3;

9



requires educational institutions issuing interim measures to provide such

10 measures to both parties or not at all, thereby burdening survivors and increasing the risk that
11 survivors of sexual harassment are isolated from their support networks in the aftermath of their
12 experience and impeded in their ongoing access to educational benefits and opportunities, see
13
14 id.;

15



requires educational institutions to consider the impact of disciplinary sanctions

16 on a perpetrator’s access to education, even after finding the individual responsible for sexual

17 harassment or violence and without regard to the survivor’s access to education, id. at 6;

18



eliminates the requirement that educational institutions consider the effect of off-

19

campus conduct that does not involve a program or activity of the institution in determining 20

21 whether there is a hostile environment, id. at 1, n. 3.

22



eliminates the requirement that educational institutions provide appellate rights to

23 both parties, if they are provided at all, and instead permits institutions to provide appellate rights

24 only to the alleged perpetrator, id. at 6-7; 25

26

27

28

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1



permits educational institutions not to provide interim measures to protect victims

2 of sexual harassment, including sexual violence from further harassment or violence during the

3 investigation into their complaint, see at 2-3;

4



does not require educational institutions to timely resolve reports of sexual

5

6 harassment, including sexual violence, id. at 3;

7



permits educational institutions to resolve claims of sexual assault through

8 mediation if both parties consent, notwithstanding, among other concerns, the likelihood that

9 even mediation which is agreed to may retraumatize the victim, see id. at 4;45

10



permits educational institutions to use the “clear and convincing evidence” burden

11 of proof in adjudicating claims of sexual harassment, including sexual violence, rather than the
12

13 equitable standard of “preponderance of evidence,” id. at 5;

14



eliminates the caution against educational institutions relying on criminal

15 investigations as a substitute for their own independent investigations and determinations

16 regarding complaints of sexual harassment, including sexual violence, cf. 2014 Q&A at 27;

17



eliminates the prohibition on permitting an alleged perpetrator to question a

18 complainant’s sexual history with individuals other than the alleged perpetrator, cf. id. at 31;
19

20



eliminates the prohibition on educational institutions treating a current or previous

21 consensual dating or sexual relationship between parties as implying consent or precluding a

22 filing of sexual violence, cf. id. at 31;

23

24

25 45 See also Anne Lawton, The Emperor’s New Clothes: How the Academy Deals with Sexual

26 Harassment, 11 Yale J.L. & Feminism 75, 130 (1999) (“[E]ven voluntary mediation can be

27

coercive.”); Grace Watkins, Sexual Assault Survivor to Betsy DeVos: Mediation is Not a Viable Resolution, TIME (Oct. 2, 2017), http://time.com/4957837/campussexual-assault-mediation/.

28

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1



fails to provide instructions on how to respond when a complainant requests

2 confidentiality or requests that no investigation or disciplinary action be pursued, cf. id. at 18-22;

3 and

4



eliminates the strong discouragement to educational institutions from permitting

5

6 alleged perpetrators to directly cross-examine complainants to avoid the perpetuation of a hostile

7 environment, cf. id.

8 117. The 2017 Title IX Policy definitively changes expectations for recipient institutions,

9 including the expectations outlined in the longstanding 2001 Guidance, which was the product of
10 notice and comment procedures (unlike the 2017 Title IX Policy) and remains in effect. For 11
example, the 2001 Guidance stated that in “alleged sexual violence, mediation will not be 12
appropriate even on a voluntary basis,” 2001 Guidance at 21, while the 2017 Title IX Policy 13 14 explicitly permits mediation in all cases where the parties consent. 2017 Q&A at 4.
15 118. The 2017 Title IX Policy also sets forth expectations and mandates on educational

16 institutions that are inconsistent with the statutory text of Title IX and its implementing

17 regulations, including, but not limited to, the following: providing for one-sided appellate rights
18 favoring the accused; permitting schools to adopt a higher burden of proof—clear and 19
convincing evidence—for adjudicating complaints of sexual harassment, including sexual 20 21 violence; considering the impact that particular sanctions would have on a perpetrator’s access to
22 education after being found responsible for sexual harassment, including sexual violence, under

23 Title IX; and departing from prior policy requiring interim measures be issued to promptly

24 remedy the hostile environment for the complainant of sexual harassment.

25 119. Ironically, Defendants issued the 2017 Title IX Policy and rescinded the 2011 and 2014
26 guidance documents without any opportunity for public notice and comment on the new policy 27

28

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1 despite stating that the “era of rule by letter is over.” 46 The Department stated that it would “craft

2 a new Title IX regulation” after a period of notice and comment.47 Yet, more than a year later,
3 the Department has not done so. (An apparently leaked draft of a proposed regulation was 4
reported on last month, but the Department has not made the proposed regulation public). 5 6 120. In promulgating the 2017 Title IX Policy, Defendants relied on multiple errors of fact and 7 law, underscoring that the Department’s policy reversal is based not on reasoned justifications,
8 but on discriminatory views of women and girls who allege sexual harassment. Among these

9 errors, the 2017 Dear Colleague letter makes several claims about the effects of the rescinded

10 guidance, stating, for example, that it had “led to the deprivation of rights for many students—
11 both the accused students denied fair process and victims denied an adequate resolution of their 12
complaints.” 2017 Dear Colleague Letter at 1-2. On the contrary, the prior policy did not require 13 14 schools to limit due process or basic fairness protections for alleged perpetrators. While there are
15 anecdotes of schools making errors in providing these procedural protections, such errors were

16 neither required by, nor the result of, the 2011 and 2014 guidance documents.

17 121. The 2011 and 2014 guidance documents clarified the requirements that Title IX imposes

18 on educational institutions to respond to complaints of sexual harassment and the protections it 19 requires for complainants. As such, they empowered students to make complaints of sexual 20
harassment, including sexual violence through campus complaint processes. The 2017 Title IX 21 22 Policy does not acknowledge or otherwise account for the reliance interests that students, or
23 organizations that work with students, have in these protections. A student who filed a complaint

24 regarding sexual violence before the issuance of the 2017 Title IX Policy would have been

25 46 Press Release, U.S. Dep’t of Educ., Dep’t of Educ. Issues New Interim Guidance on Campus

26

Sexual Misconduct, (Sept. 22, 2017), https://www.ed.gov/news/press-releases/departmenteducation-issues-new-interim-guidance-campus-sexual-misconduct.

27 47 Id.

28

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1 assured that her educational institution should resolve the investigation within about sixty days,

2 and among other protections, she would not be cross-examined by the person who allegedly
3 assaulted her. For those students whose complaints were pending in the fall of 2017, no such 4
assurances remain. 5 6 122. The 2017 Title IX Policy’s retrenchment on Title IX protections for victims of sexual 7 harassment, including sexual violence, in educational institutions was motivated by stereotypical
8 assumptions and overbroad generalizations about girls and women. Limiting Title IX’s

9 protections disproportionately impacts female students, a fact which motivated decisionmakers.

10 Specifically, decisionmakers at the Department hold the discriminatory views, as evidenced by
11 Secretary DeVos’s and Ms. Jackson’s statements and coordination with others who hold the 12
same views, that (1) many girls and women who report sexual harassment, including sexual 13 14 violence, have misunderstood a harmless romantic advance and (2) most girls and women who
15 report sexual violence either are lying or have regret about a consensual sexual encounters. By

16 reducing protections for survivors, in the Department’s view, they would reduce and discourage

17 women and girls from making such reports of their sexual assaults, reports that Department

18 decisionmakers tend not to believe.

19

The Devastating Effects of the Department’s 2017 Title IX Policy

20

123. The 2017 Title IX Policy curtails important protections against sexual harassment. This 21

22 rollback has had devastating effects on students’ equal access to educational opportunity, which

23 is all too often thwarted on the basis of their sex.

24 124. Following the issuance of the 2017 Title IX Policy, schools have modified and/or stated

25 their intention to modify their practices. For example, in the weeks following the issuance of the
26 2017 Title IX Policy, the South Dakota Board of Regents proposed “emergency revisions” to its 27

28

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1 Title IX policy that “were required to comply with the Interim Guidance [i.e., 2017 Title IX

2 Policy] issued on September 22, 2017.”48 The Board identified “revisions … to comply with the
3 requirements contained in the Interim Guidance.”49 It ultimately made a host of changes to its 4
policy to “align with” and “follow[]” the Interim Guidance. 50 The changes made by South 5 6 Dakota Board of Regents include, among others, modifications to its policy on interim measures, 7 sanctions, and mediation to “explicitly incorporate language contained in the interim
8 guidance.”51 As another example, following issuance of the 2017 Title IX Policy and after the

9 Department closed an investigation into the handling of campus sexual violence at the University

10 of Houston, the university’s spokesman stated that, in light of the current guidance, the
11 university may make some changes to how it adjudicates sexual misconduct violations to “better 12
align with the [Department of Education’s] expectations to how we ensure due process.”52 In 13 14 addition, the University of Michigan has changed its Title IX policy to adopt the option of

15

16 48 South Dakota Board of Regents, Minutes of the Meeting, Oct. 3-5, 2017, at 20, https://www.sdbor.edu/the-board/minutes/Documents/BOR_Minutes_102017.pdf

17 49 South Dakota Board of Regents, Title IX Interim Guidance, Oct. 3-5, 2017, at 1,

18

https://www.sdbor.edu/theboard/agendaitems/2014AgendaItems/2017%20Agenda%20Items/October0317/5_O_BOR1017.

19 pdf.

20

50 South Dakota Board of Regents, Minutes of the Meeting, Dec. 5-7, 2017, at 30, https://www.sdbor.edu/the-board/minutes/Documents/BOR_Minutes_1217_DRAFT.pdf

21 51 South Dakota Board of Regents, Title IX Interim Guidance, Revisions to Board Policies, Dec.

22

5-7, 2017, at 1, https://www.sdbor.edu/theboard/agendaitems/2014AgendaItems/2017%20Agenda%20Items/December17/7_E_BOR1217_

23 REVISED.pdf; see also Danielle Ferguson, South Dakota Board of Regents Passes Interim Title

IX Sexual Assault Guidelines, Argus Leader, Dec. 7, 2017, http://www.argusleader.com/

24 story/news/2017/12/07/regents-pass-interim-title-ix-sexual-assault-guidelines/926445001/ (South

25

Dakota State University vice president of student affairs stating that some of the changes were “substantive” but claiming that “most aren’t”).

26 52 Lindsay Ellis, Feds Close Title IX Investigation Into University of Houston, Chron, Oct. 4,

27

2017, http://www.chron.com/local/education/campus-chronicles/article/Feds-close-Title-IXinvestigation-into-University-12253555.php.

28

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1 mediation between an accused student and a survivor in cases of sexual assault. This new

2 University of Michigan policy resulted from the Title IX policy change.53 The University of
3 Kentucky has also adopted new policies regarding disciplinary procedures relating to sexual 4
assault, among which it now only permits appeals by students found responsible for sexual 5
assault, not for the survivor.54 6 7 125. Following the issuance of the 2017 Title IX Policy, universities have also changed their

8 policies in such a way that could delay resolution of reports of sexual misconduct, including

9 sexual assault.55

10 126. Following the issuance of the 2017 Title IX Policy, the Department has begun to modify
11 and limit its ongoing investigations and analysis of University responses to reports of sexual 12
misconduct, including sexual violence, to conform to the new Title IX policy. For example, in 13 14 June 2018 OCR issued a Letter of Findings against the University of North Carolina (“UNC”)

15

16

53Jeremy Bauer-Wolf, Mediating Sexual Assault, Inside Higher Ed, Feb. 20, 2018, https://www.insidehighered.com/news/2018/02/20/university-michigan-will-now-allow-

17 mediation-some-sexual-assault-cases; Rick Fitzgerald, U-M Revises Student Sexual and Gender-

Based Misconduct Policy, The Univ. Record, Feb. 1, 2018, https://record.umich.edu/articles/u-

18 m-revises-student-sexual-gender-based-misconduct-policy (University of Michigan Public

19

Affairs Office explains that “[t]he change [regarding mediation] also reflects the most recent guidance from the U.S. Department of Education's Office for Civil Rights.”).

20 54 Jacob Eads, UK Administration Overhauls Disciplinary Policies Regarding Sexual Assault

21

Claims, Kentucky Kernel, June 20, 2018, http://www.kykernel.com/news/uk-administrationoverhauls-disciplinary-policies-regarding-sexual-assault-claims/article_d9808d74-74c2-11e8-

22 8509-67e774e9238c.html.

55 Press Release, Grand Valley State Univ., Update on the Impact of Interim Q&A Related to 23 Title IX (Oct. 2, 2017), https://www.gvsu.edu/inclusion/module-news-

24

view.htm?storyId=B4C32E26-0CC1-44BC-CCF964C4D07C10C3&siteModuleId=6D5DCE61CC95-4B12-A9C94F3632A6F3DD (Grand Valley State University announcing it will remove

25 its 60-day time frame for investigations.); Kara Coleman, Auburn University Re-Evaluating Title IX Policies and Procedures, Feb. 9, 2018, www.oanow.com/news/auburnuniversity/auburn-

26 university-re-evaluating-title-ix-policies-and-procedures/article_16b90e14-ecf7-507c-a390-

27

85c0ad88e538.html (Auburn University removed its 60-day time frame sometime “before Christmas” and now allows for “reasonable time,” which can be “three or four months.”).

28

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1 stating that UNC’s sexual harassment policy was not equitable because it did not allow for both

2 parties to appeal.56 Questioned about how this finding was consistent with the new Policy,
3 “Department spokeswoman Liz Hill said that OCR is in the process of correcting its 4
correspondence with the university to let it know [UNC’s] policy is consistent with the 5
department’s temporary rules.”57 But for the new Policy, UNC would have remained subject to a 6 7 finding of noncompliance for the unequal appeal rights it permits, and would have been required
8 to change its practices through a binding Resolution Agreement. Now, due solely to the new

9 Policy, UNC need not enter into a legally-enforceable agreement with OCR or be subject to a

10 proceeding seeking to withdrawal of federal funds.
11 127. Following the issuance of the 2017 Title IX Policy, numerous individuals who have been 12
the subject of sexual violence or harassment have expressed to the Plaintiffs a hesitance or 13 14 unwillingness to report their incidents to their school authorities, citing the Department’s 2017
15 Title IX Policy as the reason for their hesitation or unwillingness.

16 128. These devastating consequences have overwhelmingly and disproportionately harmed

17 women and girls, among other populations that are disproportionately likely to be targeted for

18 sexual harassment and violence.
19 129. As outlined more fully in paragraphs 10-34, the consequences of the Department’s 2017 20
Title IX Policy have harmed and continue to harm Plaintiffs. Indeed, Plaintiffs are organizations 21 22 that assist and counsel survivors of sexual harassment, including sexual violence. As a result of

23 56 Compl. Ltr. and Resolution Agreement, UNC & OCR (June 2018), https://www.unc.edu/wp-

24 content/uploads/2018/06/FINAL-R-LOF-UNC-Chapel-Hill-11132051-PDF-1.pdf. ED seems to

25

no longer be publishing resolution agreements as a matter of course. None appear on its website post-dating the 2017 Title IX Policy, making it difficult to find additional examples.

26 57 Jeremy Bauer-Wolf, The “Confusing” Case of UNC’s Title IX Violations, Inside Higher Ed,

27

(June 27, 2018), https://www.insidehighered.com/news/2018/06/27/unc-found-have-violatedtitle-ix-multiyear-investigation.

28

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1 the chilling effect that the Department’s change in policy has had and continues to have on

2 reporting sexual assault and other forms of sexual harassment, Plaintiffs are unable to meet their
3 missions of serving survivors of sexual violence and other forms of sexual harassment. Further, 4
Plaintiffs have had to expend resources over and above normal levels to combat underreporting 5 6 that has resulted from the Department’s change in policy, causing a diversion of resources away 7 from their other core programmatic activities.
8 130. The effects of the 2017 Title IX Policy have also required Plaintiffs to expend resources

9 over and above their normal levels to combat confusion among survivors and educational

10 institutions and to educate both on the requirements of Title IX’s antidiscrimination provisions.

11 These resource expenditures have taken away from Plaintiffs’ other core programmatic activities,

12 causing a diversion of resources.
13

14

Plaintiff Organizations’ Relationship to Female Survivors of Sexual Violence and Barriers Those Women and Girls Face to Pursuing Federal Litigation to Challenge the

15

Discriminatory 2017 Policy

16 131. Plaintiff organizations have a close relationship with the women and girls they serve.

17 Each organization has attorney-client relationships with women and girl students who they
18 represent in Title IX proceedings before schools. 19
132. As set forth above in paragraphs 10-34, Plaintiffs’ missions are aligned with advancing 20
the interests of survivors of sexual harassment and assault, most of whom are women and girls, 21 22 and protecting their clients, survivors of sexual harassment and assault, from discriminatory
23 treatment in their schools’ Title IX processes. In addition to the legal services they provide to

24 their clients, Plaintiffs’ other work reveals the alignment of their interests with those of

25 survivors.
26 133. For example, SurvJustice provides training to schools to prevent and address sexual and 27

28

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Case 3:18-cv-00535-JSC Document 86 Filed 10/31/18 Page 47 of 53
1 gender-based violence to ensure compliance with federal law, enforcement of victim rights, and
2 development of a culture that supports survivors and encourages sexual respect. SurvJustice also 3 engages in policy advocacy to promote robust protections for survivors and to dispel rape myths 4
about women and girls like those advocated by Ms. Jackson in her statement to the New York 5 6 Times. 7 134. VRLC provides trainings to lawyers, advocates, and educators regarding sexual violence 8 on college campuses, including providing up to date research on who victims are, who
9 perpetrators are, how sexual violence is committed on campus, and on campus best practices to 10 prevent and respond to sexual violence. 11 135. ERA’s mission is to fight for women’s equality and combat gender discrimination in 12
education and employment, and it pursues this mission on behalf of students who have been 13 14 sexually harassed and assaulted. In addition to providing direct legal assistance, including free 15 advice and counseling, to such individuals, ERA represents them in litigation against schools, 16 school districts, and universities. ERA also files amicus briefs in cases involving the
17 interpretation and enforcement of anti-discrimination and other civil rights laws; provides 18 technical assistance and serves as a consultant to other attorneys representing women and girls in 19 Title IX cases and related civil litigation; connects victims of sexual harassment, including 20
sexual violence, to pro bono or other private attorneys; publishes and amplifies communications 21 22 in which women and girls use their voices to advocate on issues related to gender justice; 23 partners with student activists and leaders to conduct outreach and education to promote gender
24 equity and awareness of Title IX-related rights in schools; and advocates for policies that
25 promote gender equity in education at the local, state, and federal level, including policies that 26 protect full and equal access to education for victims of sexual assault and harassment. 27
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Case 3:18-cv-00535-JSC Document 86 Filed 10/31/18 Page 48 of 53
1 136. Individual women and girls affected by the discriminatory 2017 Title IX Policy face
2 barriers to bringing litigation on their own behalf to challenge the Policy as discriminatory. 3 137. The desire to maintain confidentiality is a significant barrier to students bringing a federal 4
lawsuit to challenge the discriminatory Policy. Women and girls considering reporting sexual 5 6 assault and harassment do so at the risk of having their sexual assault or harassment made public, 7 an experience which many prefer to keep private and which still carries significant social stigma. 8 Each organization has observed its clients wrestling with whether to report an experience of
9 sexual assault or harassment against the risk of loss of confidentiality; many women and girls 10 ultimately decide not to make such reports in favor of not losing their privacy. Pursuing federal 11 litigation creates just as much, if not more, risk of publicity. 12
138. The loss of confidentiality also carries practical concerns for students. For example, 13 14 VRLC clients have expressed concerns about the impact on their future career prospects if they 15 bring complaints forward at their institution, much less in a federal court. This concern is 16 especially true for those graduate students and PhD candidates who have been harassed or
17 assaulted by individuals who are powerful within their field. Coupled with the safety concerns, 18 the implication of having a future employer know they have been sexually assaulted, resulting 19 from lost confidentiality following reporting, plus the potential for retaliation or stalking, victims 20
are often placed in an untenable position of choosing between fighting for their rights in the 21 22 present and navigating career implications for their future. 23 139. The possibility of retraumatization is also a barrier to many students in bringing a federal
24 case to challenge the discriminatory Policy. SurvJustice and ERA have observed their clients
25 being retraumatized by schools’ hostile, retaliatory, and dilatory responses to their reports of 26 sexual violence, which have grown more common in the wake of the 2017 Title IX policy. In 27
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Case 3:18-cv-00535-JSC Document 86 Filed 10/31/18 Page 49 of 53
1 particular, ERA has observed institutional responses, which include but are not limited to long
2 delays in initiating and/or completing investigations, victim-blaming investigation tactics, 3 reversals of the role of victim and offender through, e.g., automatically issuing and enforcing 4
mutual no-contact orders against students who report sexual assault and encouraging or 5 6 facilitating facially retaliatory counter-complaints by respondents against victims, compound the 7 trauma caused by being sexually assaulted. Plaintiffs’ clients would face the prospect of further 8 re-traumatization by participation in a federal lawsuit.
9 140. Participation in a federal lawsuit raises safety concerns for women and girl survivors of 10 sexual assault and harassment. Each organization has clients who have experienced retaliation 11 after reporting sexual assault or harassment, either by their assailant or by third-parties (such as 12
peers, coaches, or professors), and clients who have experienced post-reporting stalking or other 13 14 harassment by the assailant. All three Plaintiffs have observed that no-contact orders are 15 frequently insufficient to protect survivors’ safety and/or are ignored at an institutional level. 16 ERA also has observed an increase in the frequency of institutions making no-contact orders
17 mutual, thereby automatically subjecting students who report sexual assault to restrictions on 18 their movement and access to educational programs, privileges, and activities and making 19 complainants subject to discipline for otherwise permissible conduct. Inadequate responses by 20
schools to students’ reports of sexual harassment and assault have led SurvJustice’s clients to 21 22 believe that their experiences were not taken seriously and that their safety is not important. 23 Individual participation in a federal lawsuit with its attendant spotlight—on the assailant and the
24 school—would exacerbate these safety risks by creating additional motivation to retaliate.
25 141. Fear of retaliation is also a barrier against pursuing federal litigation to challenge the 26 discriminatory Policy. Many of the Plaintiff organizations’ clients remain students at the schools 27
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Case 3:18-cv-00535-JSC Document 86 Filed 10/31/18 Page 50 of 53

1 where they were assaulted. These students have been subject to retaliation, not only from the

2 harasser, but from the school itself. For example, VRLC has observed students encountering
3 barriers to accessing appropriate classes for an on-time graduation and additional procedural 4
requirements for graduation, such as meeting with a new “advisor.” SurvJustice’s clients have 5 6 also expressed fear of being retaliated against for going public with their experience of sexual 7 assault and harassment. Becoming a named plaintiff in a federal lawsuit would likely exacerbate
8 those retaliatory responses if the portrayal of the school’s Title IX process in the lawsuit was

9 critical.

10 142. In addition, Plaintiffs have observed practical and procedural barriers to individual
11 students being able to bring a constitutional claim or effectively vindicate their constitutional 12
rights through a lawsuit challenging the 2017 Title IX Policy. The student’s claim as to the 13 14 Department’s Policy likely would not be ripe until after she had been sexually assaulted and
15 proceeded through the campus Title IX process to completion. Even if she had not graduated by

16 the time the campus Title IX process concluded, it is extremely likely that she would have

17 graduated (or been pushed out of school) by the time she could obtain relief in a federal lawsuit,

18 making any requests for relief practically – if not legally – moot.

19

Claims for Relief

20

Count One

21

(Violation of the Equal Protection Guarantee of the Fifth Amendment)

22 143. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth herein.
23 144. The Due Process Clause of the Fifth Amendment to the United States Constitution
24 forbids the federal government from denying equal protection of the laws, including by
25
26 discriminating on the basis of sex.

27

28

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1 145. In issuing the 2017 Title IX Policy, Defendants were motivated, at least in part, by their

2 discriminatory—and baseless—gender stereotype that many women and girls lack credibility
3 with regard to sexual harassment and assault. Such stereotype includes the perception that 4
women and girls who report sexual harassment misunderstood a harmless romantic advance and 5 6 that those who report sexual violence are often either lying or have regret about a consensual 7 sexual encounter.
8 146. The statements and actions of Secretary DeVos and Ms. Jackson, as well as the

9 circumstances under which the 2017 Title IX Policy change was issued, further demonstrate that

10 Defendants issued the 2017 Title IX Policy knowing it would have a disparate impact on women,
11 who constitute the overwhelming majority of sexual harassment and assault survivors, by 12
reducing federal protections for victims of sexual harassment and assault. They took this action 13 14 not despite this impact on women, but because of it.
15 147. Defendants, in issuing the 2017 Title IX Policy based on gender stereotyped

16 assumptions—as evidenced by decisionmakers’ statements and reliance on and solicitation of

17 input from groups espousing those very assumptions, departing from normal agency processes,

18 acting with the knowledge that the policy would disproportionately impact female students, and 19 motivated by that disproportionate impact—discriminated on the basis of sex in violation of the 20
Due Process Clause of the Fifth Amendment. 21 22 148. As a result of Defendants’ unlawful actions, Plaintiffs have been harmed and their
23 missions frustrated, as outlined more fully in paragraphs 10-34 above.

24

Count Two

(Ultra Vires Action)58 25

26 58 Plaintiffs are not alleging additional facts in support of their ultra vires claim, but maintain it
27 for the purpose of appeal, if necessary.
28

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1 149. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth herein.

2 150. This Court has the power to set aside actions by the Executive Branch that are ultra vires
3 (i.e., without legal authority). 4
151. In adopting the 2017 Title IX policy and permitting recipients of federal funding to adopt 5 6 policies that disadvantage victims of sexual harassment, including sexual violence, and benefit 7 the alleged perpetrators, such as by permitting educational institutions to provide one-sided
8 appellate rights, and in considering factors unrelated to Title IX’s mandate in doing so,

9 Defendants have acted in excess of their legal authority.

10 11 WHEREFORE, Plaintiffs pray that this Court:

12

1. Declare the Dear Colleague Letter and the Q&A issued in September 2017 unlawful;

13

2. Issue an injunction ordering Defendants to vacate the Dear Colleague Letter and the

14

Q&A issued in September 2017;

15

3. Award Plaintiffs costs, attorneys’ fees, and other disbursements for this action; and

16

4. Grant any other relief this Court deems appropriate. 17

18 DEMAND FOR JURY TRIAL.

19 Respectfully submitted,

20 /s/ Robin F. Thurston

21

Alice Y. Abrokwa* Leecia Welch (CA Bar No. 208741)

22 National Center for Youth Law 405 14th Street, 15th Floor

23 Oakland, CA 94612, and

24

1313 L Street, NW, Suite 130 Washington, DC 20005

25

Ph: (510) 835-8098 Fax: (510) 835-8099

26 Emails: lwelch@youthlaw.org, aabrokwa@youthlaw.org

Date: October 31, 2018

27 Jennifer A. Reisch (CA Bar No. 223671)

28

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Case 3:18-cv-00535-JSC Document 86 Filed 10/31/18 Page 53 of 53

1 Equal Rights Advocates

1170 Market Street, Suite 700 2 San Francisco, CA 94102

3

Ph: (415) 896-0672 Fax: (415) 231-0011

4 Email: jreish@equalrightsadvocates.org

5 Javier M. Guzman*

6

Robin Thurston* Karianne Jones*

7

Democracy Forward Foundation 1333 H St. NW

8 Washington, DC 20005 Ph: (202) 448-9090

9 Fax: (202) 701-1775

10

Emails: jguzman@democracyforward.org, rthurston@democracyforward.org, kjones@democracyforward.org

11 Emily Martin*

12 Neena Chaudhry*

Sunu Chandy*

13 National Women’s Law Center

14

11 Dupont Circle, NW, Suite 800 Washington, DC 20036

15

Ph: (202) 588-5180 Fax: (202) 588-5185

16 Emails: emartin@nwlc.org, nchaudhry@nwlc.org, etang@nwlc.org, schandy@nwlc.org,

17 *Admitted pro hac vice
18 Counsel for Plaintiffs 19

20

21

22

23

24

25

26

27

28

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 Case 3:18-cv-00535-JSC Document 120 Filed 03/29/19 Page 1 of 17

United States District Court Northern District of California

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7

8

SURVJUSTICE INC, et al.,

9

Plaintiffs,

10

v.

11

ELISABETH DEVOS, et al.,

12

Defendants.

Case No.18-cv-00535-JSC
ORDER RE: DEFENDANTS’ MOTION TO DISMISS THE SECOND AMENDED COMPLAINT Re: Dkt. No. 95

13

14

Plaintiffs SurvJustice, Inc., Equal Rights Advocates, and Victim Rights Law Center

15 (collectively, “Plaintiffs”) bring this action for injunctive relief against Defendants U.S.

16 Department of Education (the “Department”), Secretary Elisabeth D. DeVos, and Acting Assistant

Secretary for Civil Rights Kenneth L. Marcus (collectively, “Defendants”).1 Plaintiffs seek to 17

18 vacate the Department’s policy regarding enforcement of Title IX of the Education Amendments

of 1972, as detailed in Department guidance issued on September 22, 2017. (Dkt. No. 86 at ¶ 1.)2 19

20 Now pending before the Court is Defendants’ motion to dismiss the second amended complaint

21 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). After careful consideration of

22 the parties’ briefing, and having had the benefit of oral argument on March 7, 2019, the Court

23 DENIES Defendants’ motion to dismiss under Rule 12(b)(1) and GRANTS with prejudice

24 Defendants’ motion under Rule 12(b)(6). The allegations are insufficient to demonstrate

25 prudential standing to bring an equal protection claim, and the allegations do not plausibly suggest

26

27

1 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 18 & 36.)

28

2 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents.

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1 that Defendants acted outside their authority for the ultra vires action claim.

2

BACKGROUND

3 I. Factual Background

4

The Court incorporates by reference the factual background included in its October 1, 2018

5 order granting Defendants’ motion to dismiss the first amended complaint. (See Dkt. No. 81 at 2-

6 6.)

7 II. The Second Amended Complaint

8

Plaintiffs are three non-profit advocacy organizations; each brings this action on its own

9 behalf.

10

A. SurvJustice, Inc.

11

Plaintiff SurvJustice, Inc.’s “mission is to increase the prospect of justice for survivors of

12 sexual violence.” (Id. at ¶ 10.) SurvJustice “pursues this goal through legal assistance [to

13 complainants], policy advocacy, and institutional training.” (Id.) “The majority of requests for

14 legal assistance that SurvJustice receives are from students at institutions of higher education.”

15 (Id. at ¶ 11.) “SurvJustice also trains educational institutions to prevent and address sexual

16 violence,” and “engages in policy advocacy by providing technical assistance and advice to

17 legislators and policymakers on various state and federal legislation and policy efforts regarding

18 sexual violence, and working with changemakers within their communities on local policy efforts,

19 especially on college and university campuses.” (Id. at ¶¶ 12-13.)

20

B. Equal Rights Advocates

21

Plaintiff Equal Rights Advocates’ mission is to “protect[ ] and expand[ ] economic

22 educational access and opportunities for women and girls.” (Id. at ¶ 23.) In furthering its mission,

23 Equal Rights Advocates “engag[es] in public education efforts, as well as policy reform and

24 legislative advocacy; provid[es] free legal information and counseling; and litigat[es] cases

25 involving issues of gender discrimination in employment and education at all stages.” (Id. at ¶

26 24.) Equal Rights Advocates also “counsels and represents women who have been victims of

27 sexual harassment and/or sexual assault in matters pursuant to Title IX.” (Id.)

28 // 2

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1

C. Victim Rights Law Center

2

Plaintiff Victim Rights Law Center’s “mission is to provide legal representation to victims

3 of rape and sexual assault to help rebuild their lives and to promote a national movement

4 committed to seeking justice for every rape and sexual victim.” (Id. at ¶ 28.) In furthering its

5 mission, Victim Rights Law Center provides free legal services to victims, a “substantial portion”

6 of whom are students. (Id. at ¶ 29.) The Law Center’s “attorneys represent campus victims to

7 communicate effectively with campus administrators, acquire interim measures and

8 accommodations to secure their education, prepare and attend disciplinary hearings, file appeals,

9 and if necessary, file complaints with the [the Department’s] Office of Civil Rights.” (Id.)

10

D. Second Amended Complaint Allegations

11

The gravamen of Plaintiffs’ collective allegations is that the Department’s Title IX policy

12 guidance issued in September 2017 (“2017 Guidance”) was motivated by discriminatory animus

13 and that it removed protections for victims of sexual harassment and sexual assault. (See Dkt. No.

14 81 at 2-6 (providing detailed background on the 2017 Guidance and preceding Title IX policy).)

15 As a result, the 2017 Guidance: (i) requires a diversion of resources that impedes Plaintiffs’ daily

16 operations; (ii) “limits the efficacy” of the avenues of redress available to Plaintiffs’ clients; (iii)

17 increases the costs borne by Plaintiffs in providing their services; and (iv) “directly conflicts with,

18 impairs, and frustrates [Plaintiffs’] organizational mission and priorities.” (Dkt. No. 86 at ¶¶ 14,

19 25, 30.) Plaintiffs further allege that the 2017 Guidance violates the equal protection guarantee of

20 the Fifth Amendment of the United States Constitution because it “disproportionately burdens

21 women and girls,” and “was motivated by the baseless and discriminatory . . . stereotype that

22 women and girls tend to lie about or exaggerate experiences of sexual assault and harassment.”

23 (Id. at ¶ 6.)

24 III. Procedural History

25

In January 2018, Plaintiffs filed their initial complaint for injunctive relief against the

26 Department, and Elisabeth D. DeVos and then-acting Assistant Secretary for Civil Rights Candice

27 Jackson in their official capacities. (Dkt. No. 1.) Plaintiffs filed an amended complaint the

28 following month, seeking injunctive relief and bringing causes of action for: (i) violation of the 3

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1 Administrative Procedure Act (“APA”), 5 U.S.C. § 706; (ii) ultra vires action; and (iii) violation

2 of the equal protection guarantee under the Fifth Amendment. (Dkt. No. 23.) Defendants moved

3 to dismiss Plaintiffs’ complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and

4 12(b)(6). (Dkt. No. 40.) The Court granted Defendants’ motion to dismiss, concluding that the

5 allegations were insufficient to show standing to bring an equal protection claim, the 2017

6 Guidance did not constitute final agency action for purposes of the APA claim, and the allegations

7 did not plausibly suggest that Defendants acted outside their authority for the ultra vires action

8 claim. (Dkt. No. 81.) The Court granted Plaintiffs leave to amend as to the equal protection and

9 ultra vires action claims, but dismissed with prejudice the APA claim, concluding that the 2017

10 Guidance did not constitute final agency action as a matter of law.3 (Id. at 21.)

11

On October 31, 2018, Plaintiffs filed the second amended complaint for injunctive relief,

12 again bringing equal protection and ultra vires action claims. (Dkt. No. 86.) Defendants filed the

13 instant motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) on December 14, 2018. (Dkt.

14 No. 95.) The motion is fully briefed, (see Dkt. Nos. 96 & 102), and the Court heard oral argument

15 on March 7, 2019.

16

DISCUSSION

17

Defendants move to dismiss Plaintiffs’ equal protection claim pursuant to Rule 12(b)(1)

18 for lack of standing and Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

19 Defendants also move to dismiss Plaintiffs’ ultra vires action claim under Rule 12(b)(6). The

20 Court addresses each ground for dismissal in turn.

21 I. Rule 12(b)(1)

22

Pursuant to Rule 12(b)(1), a district court must dismiss an action if it lacks jurisdiction

23 over the subject matter of the suit. See Fed. R. Civ. P. 12(b)(1). “A party invoking federal

24 jurisdiction has the burden of establishing that it has satisfied the ‘case-or-controversy’

25 requirement of Article III of the Constitution [and] standing is a ‘core component’ of that

26 requirement.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In ruling on a motion to

27

28

3 Plaintiffs’ motion for reconsideration as to their APA claim is pending before the Court. (See Dkt. No. 107.)

4

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1 dismiss under Rule 12(b)(1), the court must “accept as true all material allegations of the

2 complaint, and . . . construe the complaint in favor of the complaining party.” Levine v. Vilsack,

3 587 F.3d 986, 991 (9th Cir. 2009) (internal quotation marks and citation omitted).

4

“The doctrine of standing asks whether a litigant is entitled to have a federal court resolve

5 his grievance.” Kowalski v. Tesmer, 543 U.S. 125, 128 (2004). Courts must consider “both

6 constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.”

7 Id. at 128-29 (internal quotation marks and citation omitted). The constitutional aspect considers

8 whether the plaintiff has satisfied the “‘case-or-controversy’ requirement of Article III,” see Lujan,

9 504 U.S. at 560, by demonstrating “(1) an injury in fact that is (a) concrete and particularized and

10 (b) actual or imminent; (2) causation; and (3) a likelihood that a favorable decision will redress the

11 injury,” Wolfson v. Brammer, 616 F.3d 1045, 1056 (9th Cir. 2010). “The prudential limitations, in

12 contrast, restrict the grounds a plaintiff may put forward in seeking to vindicate [its] personal

13 stake.” Fleck & Assocs. v. City of Phoenix, 471 F.3d 1100, 1104 (9th Cir. 2006). Thus, “even

14 when the plaintiff has alleged injury sufficient to meet the ‘case or controversy’ requirement, . . .

15 the plaintiff generally must assert his own rights and interests, and cannot rest his claim to relief

16 on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975).

17

Defendants argue that dismissal is warranted under Rule 12(b)(1) primarily because

18 Plaintiffs lack prudential standing to assert an equal protection claim on behalf of third parties.

19 (Dkt. No. 95 at 13-19.) Defendants further argue that Plaintiffs also lack Article III standing

20 because “they have not satisfied the causation and redressability prongs” of constitutional

21 standing. (Id. at 20.) Defendants’ arguments get the standing analysis backwards. See Fleck &

22 Assocs., 471 F.3d at 1105 (holding that because the plaintiff “failed to allege a cognizable personal

23 injury, the prudential limits on ‘third-party standing’ are beside the point.”) As the Fleck court

24 explained:

25

Under traditional standing doctrine, a party meeting the constitutional

requirements of injury, causation, and redressability, may, on rare

26

occasions, “act[ ] as [an] advocate [for] the rights of third parties,”

Craig v. Boren, 429 U.S. 190, 195, 97 S. Ct. 451, 50 L.Ed.2d 397

27

(1976), if he can overcome the prudential rule limiting grounds for

relief. However, exceptions to the prudential rule presuppose a

28

litigant who has already met the constitutional requirements. See

5

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Kowalski, 543 U.S. at 128-29, 125 S. Ct. 564 (reiterating that

1

constitutional standing limits are separate and distinct from prudential

rule against asserting third-party rights). 2

3 Id. (alterations in original). Thus, because Defendants challenge both Article III and prudential

4 standing, the Court must first determine whether Plaintiffs have constitutional standing. See id.

5 (noting that “exceptions to the prudential rule presuppose a litigant who has already met the

6 constitutional requirements.”). Further, district courts in this circuit consider challenges to

7 prudential standing in the context of motions to dismiss under Rule 12(b)(6), not under Rule

8 12(b)(1). See Elizabeth Retail Props. LLC v. KeyBank Nat’l Ass’n, 83 F. Supp. 3d 972, 985-86

9 (D. Or. 2015) (“While constitutional standing is evaluated under Rule 12(b)(1), prudential

10 standing is evaluated under Rule 12(b)(6).”); Doe v. Hamburg, No. 12-cv-03412-EMC, 2013 WL

11 3783749, at *5 (N.D. Cal. July 16, 2013) (same) (citing Cetacean Cmty v. Bush, 386 F.3d 1169,

12 1174-75 (9th Cir. 2004) and that court’s discussion of dismissal under Rule 12(b)(1) for cases in

13 which the plaintiff lacks Article III standing, and dismissal under Rule 12(b)(6) for cases in which

14 statutory standing is lacking); Gentges v. Trend Micro Inc., No. C 11-5574 SBA, 2012 WL

15 2792442, at *4 n.3 (N.D. Cal. July 9, 2012) (“While Article III standing may be raised in a Rule

16 12(b)(1) motion, questions of prudential standing must be raised in a Rule 12(b)(6) motion.”)

17 (citing Cetacean Cmty, 386 F.3d at 1174-75).4

18

Accordingly, the Court will address only Defendants’ arguments regarding Article III

19 standing in the context of their motion to dismiss under Rule 12(b)(1).

20

A. Plaintiffs Demonstrate Article III Standing

21

As previously discussed, Plaintiffs have the burden of establishing constitutional standing

22 by showing: “(1) an injury in fact that is (a) concrete and particularized and (b) actual or

23 imminent; (2) causation; and (3) a likelihood that a favorable decision will redress the injury.”

24

25

4 This is largely a distinction without a difference here, however, because Defendants move to dismiss under both Rule 12(b)(1) and 12(b)(6) and the same standard of review applies. See

26

Warth, 422 U.S. at 501 (“For purposes of ruling on a motion to dismiss for want of standing, . . . courts must accept as true all material allegations of the complaint, and must construe the

27

complaint in favor of the complaining party.”); see also Manzarek v. St. Paul Fire & Mar. Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (noting that for purposes of ruling on a Rule 12(b)(6)

28

motion, the court must “accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.”).

6

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1 Wolfson, 616 F.3d at 1056. Here, Defendants challenge only the second and third prong of the 2 constitutional standing inquiry—causation and redressability.5

3

1. Causation

4

Defendants argue that Plaintiffs fail to demonstrate causation because the 2017 Guidance

5 “has no legal effect” and Plaintiffs “have not shown how Defendants’ Fifth Amendment violation

6 would be imputed onto a school that voluntarily changes its Title IX policies.” (Dkt. No. 95 at 20-

7 21.) Thus, Defendants insist that Plaintiffs “have not traced any injury to the 2017 Guidance.”

8 (Id. at 20.) The Court disagrees.

9

Plaintiffs allege that Defendants unlawfully regulated a third party, causing injury to

10 Plaintiffs themselves; specifically, Plaintiffs allege that colleges and universities’ implementation

11 of the 2017 Guidance caused Plaintiffs’ organizational injury. Thus, “causation and redressability

12 . . . hinge on the response of the regulated (or regulable) third party to the government action or

13 inaction.” See Lujan, 504 U.S. at 562. In such cases, “[m]ore particular facts are needed to show

14 standing.” Novak v. United States, 795 F.3d 1012, 1019 (9th Cir. 2015) (quoting Mendia v.

15 Garcia, 768 F.3d 1009, 1013 (9th Cir. 2014)). “To plausibly allege that the injury was not the

16 result of the independent action of some third party, the plaintiff must offer facts showing that the

17 government’s unlawful conduct is at least a substantial factor motivating the third parties’

18 actions.” Id. (internal quotation marks and citation omitted). Plaintiffs have done so here.

19

The second amended complaint—when construed in the light most favorable to

20 Plaintiffs—sufficiently pleads a causal link between Plaintiffs’ organizational injury and the 2017

21 Guidance, based on the reaction of some schools to the Guidance. Plaintiffs allege that

22 “[f]ollowing the issuance of the 2017 Title IX Policy, schools have modified and/or stated their

23 intention to modify their practices” to conform to the Guidance. (Dkt. No. 86 at ¶ 124 (citing

24 action taken in response to the 2017 Guidance by the South Dakota Board of Regents, University

25

26

5 The Court’s October 2018 order held that Plaintiffs satisfied the injury-in-fact prong of Article III standing as to their APA and ultra vires action claims because Plaintiffs asserted organizational

27

standing and demonstrated: (1) frustration of their organizational mission; and (2) diversion of resources because of that frustration. (See Dkt. No. 81 at 10-14.) Because Defendants do not

28

challenge the injury-in-fact prong as to Plaintiffs’ equal protection claim, the Court incorporates by reference its analysis in the previous order and applies it here.

7

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1 of Houston, University of Michigan, and University of Kentucky).) Plaintiffs further allege that in

2 response to the 2017 Guidance, other schools “have also changed their policies in such a way that

3 could delay resolution of reports of sexual misconduct, including sexual assault.” (Id. at ¶ 125

4 n.56 (citing action taken by Grand Valley State University and Auburn University).) Thus,

5 Plaintiffs do not merely speculate that schools will change their Title IX policies to conform to the

6 2017 Guidance, they plead facts showing that certain schools already have. These allegations are

7 sufficient to satisfy the causation element of Article III standing because they show that the 2017

8 Guidance “is at least a substantial factor motivating” the schools’ actions. See Novak, 795 F.3d at

9 1019.

10

At oral argument, Defendants cited Novak v. United States for the proposition that

11 Plaintiffs must plead causation with particularity because they assert injury arising from

12 Defendants’ allegedly unlawful regulation of a third party, and not Plaintiffs themselves. That is

13 true; however, as discussed above, Plaintiffs have done so by identifying specific schools that

14 have changed their policies to conform to the 2017 Guidance. Further, the Novak court concluded

15 that causation was lacking because the “[p]laintiffs’ own complaint” alleged facts demonstrating

16 that the regulated third parties “may well have engaged in their injury-inflicting actions even in the

17 absence of the government’s challenged conduct.” Id. at 1019 (internal quotation marks and

18 citation omitted). There are no such allegations here.

19

2. Redressability

20

To demonstrate redressability, Plaintiffs must show that it is “likely, as opposed to merely

21 speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561.

22 Thus, Plaintiffs “need to show that there would be a change in the legal status as a consequence of

23 a favorable decision and that a practical consequence of that change would amount to a significant

24 increase in the likelihood that the plaintiff would obtain relief that directly addresses the injury

25 suffered.” Novak, 795 F.3d at 1019-20 (internal quotation marks and citations omitted).

26

The second amended complaint seeks, in pertinent part: (1) a declaration that the 2017

27 Guidance is unlawful; and (2) an injunction ordering Defendants to vacate the 2017 Guidance.

28 Defendants argue that “it is entirely speculative that vacating the 2017 Guidance would affect 8

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1 schools’ decisions regarding their Title IX policies,” (see Dkt. No. 95 at 21), because this Court

2 has already determined that the 2017 Guidance is voluntary and not legally binding on schools,

3 (see Dkt. No. 81 at 17-20). Plaintiffs counter that they have redressable injuries because “an order

4 vacating the 2017 Title IX Policy would likely result in schools returning to policies and practices

5 in place under the former policy.” (Dkt. No. 96 at 20.) Plaintiffs further argue that consideration

6 of the legal effect of the 2017 Guidance constitutes “shoehorn[ing] the final agency action

7 requirement [of an APA claim] into the standing inquiry for a constitutional claim.” (See Dkt. No.

8 96 at 20). The Court agrees.

9

As stated in the Court’s October 2018 order, the 2017 Guidance does not constitute a

10 binding change in law; instead, “if a school disagreed with the 2017 Guidance and chose not to

11 follow it, it would suffer no legal consequences as long as it continued to comply with Title IX

12 and its implementing regulations.” (Id. at 18.) However, in the context of Plaintiffs’ equal

13 protection claim, they have alleged facts showing that some schools have modified their policies

14 in direct response to the 2017 Guidance; thus, vacating the Guidance because it violates the Fifth

15 Amendment would prevent other schools from following suit. Further, declaring the 2017

16 Guidance unconstitutional would reflect “a change in legal status” of the Guidance, making it

17 likely that those schools that have changed their policies to conform to the 2017 Guidance would

18 return to their former policies (or adopt other policies that do not reflect the 2017 Guidance), so as

19 not to face the significant likelihood of legal action challenging their continued use of policies

20 declared unconstitutional. In other words, the “practical consequence” of an order declaring the

21 2017 Guidance unconstitutional “would amount to a significant increase in the likelihood that the

22 plaintiff would obtain relief that directly addresses the injury suffered,” see Novak, 795 F.3d at

23 1019-20.

24

Defendants’ reliance on Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ. fails to persuade.

25 (See Dkt. Nos. 95 at 21; 102 at 10-11 (citing 366 F.3d 930 (D.C. Cir. 2004), abrogated on other

26 grounds by Perry Capital LLC v. Mnuchin, 864 F.3d 591, 620 (D.C. Cir. 2017)).) The

27 membership organization-plaintiffs in Nat’l Wrestling Coaches sought an order vacating certain

28 Title IX enforcement guidance that allegedly caused the “elimination of men’s varsity wrestling 9

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1 programs at certain universities.” 366 F.3d at 933. In pertinent part, the plaintiffs specifically

2 challenged a “1979 Policy Interpretation and [its] 1996 Clarification” on grounds that the guidance

3 violated the equal protection guarantee under the Fifth Amendment. Id. at 936. The court

4 affirmed the district court’s dismissal for lack of Article III standing, concluding that the “alleged

5 injury results from the independent decisions of federally funded educational institutions that

6 choose to eliminate or reduce the size of men’s wrestling teams in order to comply with Title IX,”

7 and the plaintiffs had “failed to demonstrate how a favorable judicial decision on the merits of

8 their claims will redress this injury.” Id. The court summarized its ruling thusly:

9

In this case, appellants offer nothing but speculation to substantiate

their assertion that a favorable judicial decision would result in

10

schools altering their independent choices regarding the restoration or

preservation of men's wrestling programs. Appellants do not contest

11

the constitutionality of Title IX, nor do they challenge the 1975

regulations. Therefore, that legal regime, which requires schools to

12

take gender equity concerns into account when structuring their

athletic programs, would remain in place even if the disputed 1996

13

Clarification and the 1979 Policy Interpretation were revoked. And

under that legal regime, schools would still have the discretion to

14

eliminate men's wrestling programs, as necessary, to comply with the

gender equity mandate of Title IX. A judicial decision striking down

15

the 1996 Clarification and the 1979 Policy Interpretation would not

afford appellants redress sufficient to support standing. 16

17 Id. In other words, even if the challenged policy was revoked, the alleged injury—elimination of

18 men’s wrestling programs—could continue under Title IX. The court further noted that the

19 plaintiffs did “not suggest that any particular school necessarily would forego elimination of a

20 wrestling team or reinstate a previously disbanded program in the absence of these interpretive

21 rules.” Id. at 939. Thus, “nothing but speculation suggests that schools would act any differently

22 than they do with [the challenged policy] in place.” Id. at 940.

23

The challenged policy here, however, substantively differs from the Rescinded Guidance,

24 and there is nothing to suggest that in complying with Title IX and its implementing regulations

25 schools would engage in the allegedly injurious conduct absent the 2017 Guidance. Further, in

26 addition to the issues regarding redressability, the Nat’l Wrestling Coaches court found a lack of

27 evidence as to causation and distinguished the plaintiffs’ showing with cases in which “causation

28 is so clear that redressability inexorably follows.” See id. at 942. Conversely here, Plaintiffs 10

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1 plead facts showing a causal relationship between the 2017 Guidance and the conduct of specific

2 schools in revising their sexual misconduct policies in direct response to the guidance. Because

3 that conduct allegedly flows directly from the 2017 Guidance, it follows that if the Guidance were

4 declared unconstitutional and vacated on those grounds, schools would have no reason to continue

5 implementing the injurious and unlawful policies. See id. at 943.

6

***

7

Plaintiffs have satisfied the elements of Article III standing. Accordingly, the Court

8 DENIES Defendants’ motion to dismiss under Rule 12(b)(1). The Court next addresses

9 Defendants’ Rule 12(b)(6) motion and whether Plaintiffs have demonstrated third-party standing

10 to assert the constitutional rights of others for purposes of their equal protection claim, and

11 whether Plaintiffs have stated an ultra vires action claim.

12 II. Rule 12(b)(6)

13

A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege

14 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

15 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual

16 content that allows the court to draw the reasonable inference that the defendant is liable for the

17 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court ruling on a Rule

18 12(b)(6) must “accept factual allegations in the complaint as true and construe the pleadings in the

19 light most favorable to the non-moving party.” Manzarek v. St. Paul Fire & Mar. Ins. Co., 519

20 F.3d 1025, 1031 (9th Cir. 2008).

21

A. Plaintiffs Fail to Demonstrate Third-Party Standing6

22

The Court’s October 2018 order dismissed Plaintiffs’ equal protection claim because

23 Plaintiffs were advocating for the constitutional rights of third parties but failed to demonstrate

24

25 6 As noted in the Court’s October 2018 order, the Court need not consider whether the “zone of

26

interests” test set forth in Lexmark Int’l v. Static Control Components, Inc., 124 S. Ct. 1377 (2014) is applicable to the prudential standing issue raised here. In Lexmark, the Supreme Court did not

27

address the issue of third-party standing. See 124 S. Ct. at 1387 n.3; see also Ray Charles Found. v. Robinson, 795 F.3d 1109, 1118 n.9 (9th Cir. 2015) (“conclud[ing], in unison with all other

28

courts to have spoken on the issue [after Lexmark], that the third-party standing doctrine continues to remain in the realm of prudential standing.”).

11

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1 third-party standing. (See Dkt. No. 81 at 14-16 (noting that the complaint only generally alleged

2 that the 2017 Guidance discriminates against women in violation of the equal protection clause of

3 the Fifth Amendment).) The Court granted Plaintiffs leave to amend to correct that deficiency.

4

A plaintiff asserting third-party standing must show: (1) its own injury; (2) a close

5 relationship with the third party; and (3), and “some hindrance to the third party’s ability to protect

6 his or her own interests.” Powers v. Ohio, 499 U.S. 400, 411 (1991). The Supreme Court

7 recognized in Kowalski v. Tesmer that it has “not looked favorably upon third-party standing”

8 outside the context of First Amendment cases or cases where “enforcement of the challenged

9 restriction against the litigant would result indirectly in the violation of third parties’ rights,” see

10 543 U.S. at 130 (internal quotation marks and citation omitted). It is undisputed that this action

11 falls into neither category of case. That fact alone, however, is not dispositive. See Singleton v.

12 Wulff, 428 U.S. 106, 118 n.7 (1976) (refusing to adopt a per se rule regarding third-party standing

13 requiring that the challenged restriction directly interfere with a litigant’s conduct).

14

As discussed above, Plaintiffs have demonstrated an organizational injury. Regarding the

15 “close relationship” prong, the second amended complaint alleges that “Plaintiff organizations

16 have a close relationship with the women and girls they serve. Each organization has attorney-

17 client relationships with women and girl students who they represent in Title IX proceedings

18 before schools.” (Dkt. No. 86 at ¶ 131.) Plaintiffs’ opposition further clarifies that the “relevant”

19 third party whose rights they seek to advance consists of “female survivors of sexual violence who

20 are protected by Title IX (primarily students) and to whom Plaintiffs provide legal representation

21 or with whom Plaintiffs otherwise have an advisory or representative relationship.” (Dkt. No. 96

22 at 14.)

23

Defendants do not “disput[e] that Plaintiffs have pleaded a sufficiently close relationship

24 with their current clients to satisfy third party standing.” (Dkt. No. 102 at 6-7.) Defendants

25 instead argue only that Plaintiffs fail to satisfy the last prong of third-party standing—the inability

26 of the parties to bring their own equal protection claims. The Court agrees that Plaintiffs have

27 shown injury and a close relationship under the test; as those issues are not in dispute, the Court

28 addresses the remaining prong. 12

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1

Plaintiffs allege that their clients “face barriers to bringing litigation on their own behalf to

2 challenge the Policy as discriminatory.” (Dkt. No. 86 at ¶ 136.) Such barriers include: (1) “[t]he

3 desire to maintain confidentiality”; (2) the possibility of “further re-traumatization by participation

4 in a federal lawsuit”; (3) “[f]ear of retaliation” by their clients’ harassers and from the schools

5 themselves”; and (4) “practical and procedural barriers” regarding ripeness and mootness

6 indicating a “low likelihood that a student will obtain relief prior to graduation.” (Dkt. Nos. 86 at 7 ¶¶ 137-142; 96 at 16.)7

8

Defendants argue that Plaintiffs’ asserted hindrances are insufficient to invoke third-party

9 standing because it is possible for the third party to raise the equal protection claim themselves,

10 “and there is evidence that third parties in fact have raised such claims.” (Dkt. No. 95 at 18 (citing

11 Tesmer, 543 U.S. at 132).) The Court agrees.

12

Plaintiffs appear to allege legitimate privacy, safety, and procedural concerns; however,

13 Defendants are correct “that third parties, at least in some instances, have also challenged the 2017

14 Guidance despite the alleged hindrances.” (Dkt. No. 95 at 19.) Defendants’ motion cites Equal

15 Means Equal v. Dep’t of Educ., No. 1:17-cv-12043-MLW (D. Mass. Filed Oct. 19, 2017), and

16 argues that the case demonstrates that Plaintiffs’ asserted barriers to litigation are not genuine

17 barriers. The plaintiffs in Equal Means Equal consist of an advocacy organization, three

18 pseudonymous “Jane Doe” college students, “and similarly situated others,” who are—as

19 Plaintiffs, here—seeking to vacate the 2017 Guidance. See Complaint, Equal Means Equal, No.

20 1:17-cv-12043-MLW (D. Mass. filed Oct. 19, 2017); see also Harris v. Cty. of Orange, 682 F.3d

21 1126, 1132 (9th Cir. 2012) (noting that judicial notice is appropriate for “undisputed matters of

22 public record, including documents on file in federal or state courts.”) (internal citation omitted).

23

Plaintiffs’ opposition does not address the litigation in Equal Means Equal, and Plaintiffs

24

25 7 Plaintiffs allege that an individual’s constitutional claim challenging the 2017 Guidance “likely

26

would not be ripe until after she had been sexually assaulted and proceeded through the campus Title IX process to completion.” (Dkt. No. 86 at ¶ 142.) Plaintiffs further allege that “[e]ven if

27

[the individual] had not graduated by the time the campus Title IX process concluded, it is extremely likely that she would have graduated (or been pushed out of school) by the time she

28

could obtain relief in a federal lawsuit, making any requests for relief practically—if not legally— moot.” (Id.)

13

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1 fail to explain how the hindrances they allege in this case are plausible when similarly situated

2 individuals in Equal Means Equal are currently asserting their own constitutional and statutory

3 rights. Plaintiffs instead note that “an obstacle need not be insurmountable.” (See Dkt. No. 96 at

4 17 (citing Singleton, 428 U.S. at 114-15).) That is true; however, the obstacle must still be

5 plausible. The Court cannot ignore pending litigation involving similarly situated plaintiffs

6 asserting their own claims against the same defendants challenging the same government action.

7 See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (noting that on a

8 12(b)(6) motion, “[t]he court need not . . . accept as true allegations that contradict matters

9 properly subject to judicial notice or by exhibit.”). Simply put, the pending litigation in Equal

10 Means Equal cuts directly against Plaintiffs’ allegations of hindrance. See Gentges, 2012 WL

11 2792442, at *6 (finding a lack of prudential standing where the allegations of injury where

12 “directly contravened” by the contract at issue) (citing Sprewell, 266 F.3d at 988). Plaintiffs cite

13 no case in which a court granted third-party standing under similar circumstances, and the Court’s

14 research reveals none.

15

Tesmer is instructive on this point. There the Supreme Court determined—despite

16 evidence of significant barriers—that the attorney-petitioners seeking to assert third-party standing

17 failed to demonstrate that the indigent criminal defendants they sought to represent were unable to

18 assert their own constitutional claims challenging a Michigan state statute prohibiting appointment

19 of appellate counsel for indigent defendants.8 543 U.S. at 131-32; see also id. at 140-41

20 (Ginsburg, J. dissenting) (discussing barriers faced by inmates). The petitioners argued “that

21 unsophisticated, pro se criminal defendants could not satisfy the necessary procedural

22 requirements [to challenge the denial of appointment of appellate counsel in Michigan state court],

23 and, if they did, they would be unable to coherently advance the substance of their constitutional

24 claim.” Id. at 132. The Supreme Court rejected that argument, citing Michigan state court cases

25 and a then-pending writ of certiorari in which pro se criminal defendants had done precisely what

26

27 8 The Tesmer Court also determined that the attorney-petitioners failed to demonstrate a close

28

relationship (or any relationship at all) with the pro se criminal defendants they sought to represent. 543 U.S. at 131.

14

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1 petitioners claimed they could not do—challenge their denial of appellate counsel in state and

2 federal court. Id.

3

Plaintiffs argue that Tesmer does not stand for the proposition that “past litigation by an

4 individual negates any barrier for someone else to sue today,” nor “does it hold that any example

5 of an individual overcoming an asserted hindrance to litigation should bar the finding of prudential

6 standing.” (Dkt. No. 96 at 17-18.) The Court agrees. Tesmer does suggest, however, that an

7 alleged hindrance to litigation is not plausible where it is directly undercut by judicially noticeable

8 facts showing that a similarly situated third party was undeterred in litigating the same issue

9 against the same defendant. That is precisely the circumstance here.

10

Plaintiffs’ reliance on Powers v. Ohio, 499 U.S. 400 (1991) (concluding that criminal

11 defendant-petitioner had third-party standing to assert equal protection claim on behalf of jurors in

12 the context of petitioner’s “right to object to the prosecutor’s improper exclusion of jurors”),

13 Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989) (concluding that petitioner-

14 attorney had third-party standing to assert constitutional claim on behalf of client regarding

15 enforcement of forfeiture statute under which petitioner asserted an interest in client’s property),

16 Griswold v. Connecticut, 381 U.S. 479 (1965) (concluding that criminal defendant-appellants

17 convicted under state law forbidding use of contraceptives had third-party standing to challenge

18 constitutionality of the statute by asserting the privacy rights “of married people with whom they

19 had a professional relationship.”), and Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908

20 (9th Cir. 2004) (concluding that plaintiff-physician had third-party standing to assert constitutional

21 claims on behalf of patients challenging parental consent statute that would subject plaintiff to

22 potential liability), is unavailing for two reasons. First, each of those cases—unlike here—involve

23 enforcement of a challenged restriction against a “litigant [that] would result indirectly in the

24 violation of third parties’ rights.” See Tesmer, 543 U.S. at 130 (noting that such cases are viewed

25 favorably regarding third-party standing standing). And in Singleton v. Wulff, also cited by

26 Plaintiffs, the Supreme Court concluded that the respondent-physicians had third-party standing to

27 assert constitutional claims on behalf of their patients to challenge a Missouri statute limiting

28 “reimbursable abortions to those that are ‘medically indicated.’” 428 U.S. at 113-118. Although 15

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1 the Singleton Court refused to adopt a per se rule in third-party standing cases requiring that the

2 challenged policy directly interfere with the litigant’s conduct, the Supreme Court noted that “it is

3 not clear why a ‘direct interference’ or ‘interdiction’ test would not allow the [third-party

4 standing] assertion in this case.” Id. at 118 n.7 (“For a doctor who cannot afford to work for

5 nothing, and a woman who cannot afford to pay him, the State’s refusal to fund an abortion is as

6 effective an ‘interdiction’ of it as would ever be necessary.”). Second, none of the cases cited by

7 Plaintiffs involve facts indicating that similarly situated third parties were involved in pending

8 litigation challenging the same policy.

9

Moreover, third-party standing represents an exception to the general prudential limitation

10 that a plaintiff “must assert his own rights and interests, and cannot rest his claim to relief on the

11 legal rights or interests of third parties.” Warth, 422 U.S. at 499; see also Fleck & Assocs., 471

12 F.3d at 1105 (noting that “on rare occasions,” a litigant may assert “the rights of third parties,

13 Craig v. Boren, 429 U.S. 190, 195, 97 S. Ct. 451, 50 L.Ed.2d 397 (1976), if he can overcome the

14 prudential rule limiting grounds for relief.”). Plaintiffs essentially ask the Court to extend the

15 exception of third-party standing to encompass not only a type of case in which the Supreme

16 Court has “not looked favorably upon third-party standing,” see Tesmer, 543 U.S. at 130, but a

17 case in which the alleged hindrances did not deter similarly situated plaintiffs. Because this Court

18 is bound by precedent, it declines the invitation to do so.

19

***

20

Plaintiffs fail to satisfy the requirements of third-party standing to assert an equal

21 protection claim on behalf of third parties. Accordingly, the Court grants Defendants’ motion to

22 dismiss the equal protection claim under Rule 12(b)(6) for lack of prudential standing. The Court

23 need not address the parties’ other arguments regarding failure to state a claim.

24

B. Ultra Vires Action

25

Non-statutory review of agency action is available when the action is ultra vires; that is,

26 when an agency has violated an unambiguous and mandatory legal requirement. Leedom v. Kyne,

27 358 U.S. 184, 188-89 (1958). The Court’s October 2018 order granting dismissal of the first

28 amended complaint’s ultra vires claim concluded that Plaintiffs provided “wholly conclusory 16

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1 allegations,” and failed to plausibly allege that Defendants acted outside their legal authority in

2 issuing the 2017 Guidance. (Dkt. No. 81 at 21.) Thus, the Court dismissed the claim but granted

3 Plaintiffs leave to amend. (Id.)

4

The second amended complaint fails to cure the previous deficiencies; indeed, the

5 complaint contains no new allegations regarding the ultra vires claim. The complaint instead

6 includes a footnote stating that Plaintiffs “are not alleging additional facts in support of their ultra

7 vires claim, but maintain it for the purpose of appeal, if necessary.” (Dkt. No. 86 at 51 n.58.)

8 Given the absence of any new allegations, the Court dismisses this claim for the reasons set forth

9 in its previous order. (See Dkt. No. 81 at 21.) Further, the Court grants dismissal with prejudice

10 because Plaintiffs did not amend their complaint after being granted leave to amend, but instead

11 “re-pled the same facts and legal theories.” See Loos v. Immersion Corp., 762 F.3d 880, 890-91

12 (9th Cir. 2014) (affirming district court’s dismissal without leave to amend where the plaintiff

13 “failed to correct the deficiencies identified in his original complaint.”).

14

CONCLUSION

15

For the reasons set forth above, the Court DENIES Defendants’ motion to dismiss under

16 Rule 12(b)(1) for lack of Article III standing. The Court GRANTS Defendants’ motion to dismiss

17 Plaintiffs’ equal protection claim under Rule 12(b)(6) for lack of prudential standing. The

18 dismissal is with prejudice as to these Plaintiffs because they have not and cannot show third-party

19 standing. The Court likewise GRANTS Defendants’ motion to dismiss with prejudice as to

20 Plaintiffs’ ultra vires action claim.

21

This Order disposes of Docket No. 95.

22

IT IS SO ORDERED.

23 Dated: March 29, 2019

24

25

26

JACQUELINE SCOTT CORLEY United States Magistrate Judge

27

28 17

 
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United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

SURVJUSTICE INC, et al.,

8

Plaintiffs,

9

v.

10

ELISABETH DEVOS, et al.,

11

Defendants.

Case No.18-cv-00535-JSC
ORDER RE: PLAINTIFFS’ MOTION FOR RECONSIDERATION Re: Dkt. No. 107

12

Plaintiffs SurvJustice, Inc., Equal Rights Advocates, and Victim Rights Law Center

13 (collectively, “Plaintiffs”) bring this action for injunctive relief against Defendants U.S.

14 Department of Education (the “Department”), Secretary Elisabeth D. DeVos, and Acting Assistant

15 Secretary for Civil Rights Kenneth L. Marcus (collectively, “Defendants”).1 Plaintiffs seek to

16 vacate the Department’s policy regarding enforcement of Title IX of the Education Amendments

17 of 1972, as detailed in Department guidance issued on September 22, 2017. (Dkt. No. 86 at ¶ 1.)2

18 Now pending before the Court is Plaintiffs’ motion for reconsideration, (Dkt. No. 107), of this

19 Court’s October 1, 2018 order dismissing with prejudice Plaintiffs’ claim under the Administrative

20 Procedure Act (“APA”), 5 U.S.C. § 706, (Dkt. No. 81). After careful consideration of the parties’

21 briefing, the Court concludes that oral argument is not needed, see N.D. Cal. Civ. L.R. 7-1(b), and

22 GRANTS Plaintiffs’ motion because the Ninth Circuit’s recent decision in Gill v. U.S. Dep’t of

23 Justice, 913 F.3d 1179 (9th Cir. 2019) warrants reconsideration of the October 2018 order to the

24 extent it dismissed Plaintiffs’ APA claim with prejudice.

25 //

26

27

1 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 18 & 36.)

28

2 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents.

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1

BACKGROUND

2

The factual background and procedural history of this case are detailed in the October 2018

3 order granting Defendants’ motion to dismiss the first amended complaint. (See Dkt. No. 81 at 2-

4 8.) As relevant here, Plaintiffs alleged that the Department’s Title IX policy guidance issued in

5 September 2017 (“2017 Guidance”) is arbitrary and capricious and thus violates the APA. The

6 Court dismissed Plaintiffs’ APA claim with prejudice, concluding that the 2017 Guidance did not

7 constitute “final agency action” for purposes of judicial review under the APA. (Id. at 16-20

8 (concluding that the 2017 Guidance failed the second prong of Bennett v. Spear, 520 U.S. 154,

9 178 (1997) (requiring that the challenged government action be “one by which rights or

10 obligations have been determined, or from which legal consequences will flow.”)).)

11

On February 8, 2019, Plaintiffs filed a motion for leave to file a motion for reconsideration

12 of the Court’s dismissal of Plaintiffs’ APA claim, (Dkt. No. 103), which the Court granted, (Dkt.

13 No. 104). Plaintiffs filed their motion for reconsideration pursuant to Federal Rule of Civil

14 Procedure 54(b) thereafter. (Dkt. No. 107.) The motion is fully briefed, (see Dkt. Nos. 115 &

15 116).

16

LEGAL STANDARD

17

Pursuant to Rule 54(b), a court order that does not terminate the action “may be revised at

18 any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and

19 liabilities.” Fed. R. Civ. P. 54(b); see also City of Los Angeles, Harbor Div. v. Santa Monica

20 Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (“As long as a district court has jurisdiction over the

21 case, then it possesses the inherent procedural power to reconsider, rescind, or modify an

22 interlocutory order for cause seen by it to be sufficient.”) (internal quotation marks and citation

23 omitted). Under Civil Local Rule 7-9(b), a party seeking reconsideration of an interlocutory order

24 must show one of the following: (1) “a material difference in fact or law exists from that which

25 was presented to the Court before entry of the interlocutory order for which reconsideration is

26 sought”; (2) “[t]he emergence of new material facts or a change of law occurring after the time of

27 such order; or (3) [a] manifest failure by the Court to consider material facts or dispositive legal

28 2

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1 arguments which were presented to the Court before such interlocutory order.”3 N.D. Cal. Civ.

2 L.R. 7-9(b).

3

DISCUSSION

4

Plaintiffs argue that reconsideration of the Court’s October 2018 order is warranted based

5 on the Ninth Circuit’s “intervening decision” in Gill v. U.S. Dep’t of Justice, 913 F.3d 1179 (9th

6 Cir. 2019). (Dkt. No. 107 at 3.) Plaintiffs assert that Gill “clarifies what actions constitute ‘final

7 agency action’ under Bennett v. Spear, 520 U.S. 154 (1997).” (Id.) Defendants counter that “Gill

8 does not represent a change in the law, and nothing in Gill casts doubt upon this Court’s

9 conclusion that the [2017] Guidance is not final agency action.” (Dkt. No. 115 at 5.) The Court

10 disagrees. As discussed below, Gill reflects “shifting precedent” warranting reconsideration on

11 the issue of finality and the Court’s dismissal of Plaintiffs’ APA claim with prejudice. See United

12 States v. Martin, 226 F.3d 1042, 1049 (9th Cir. 2000) (recognizing district courts’ inherent

13 authority to reconsider interlocutory orders “based on shifting precedent.”).

14 I. APA Claims Generally and the Bennett Test

15

Under the APA, a plaintiff may seek judicial review of “final agency action for which there

16 is no other adequate remedy in a court.” 5 U.S.C. § 704. Determining whether an agency action is

17 “final” is a two-step process. Bennett, 520 U.S. at 177-78. The action must first “mark the

18 consummation of the agency’s decisionmaking process.” Id. (internal quotation marks and

19 citation omitted). Next, “the action must be one by which rights or obligations have been

20 determined, or from which legal consequences will flow.” Id. at 178 (internal quotation marks and

21 citation omitted).

22

As previously discussed, the Court’s October 2018 order determined that that the 2017

23 Guidance did not constitute final agency action for purposes of judicial review under the APA

24 because the Guidance did not produce legal consequences, and thus failed the second Bennett

25

26 3 The Court granted Plaintiffs’ motion for leave to file a motion for reconsideration under Local

27

Rule 7-9(b), (see Dkt. No. 104), based on Plaintiffs’ initial showing and argument regarding “[t]he emergence of new material facts or a change of law occurring” after the Court’s October 2018

28

order, (see Dkt. No. 103 at 3-4). The Court now addresses the merits of Plaintiffs’ motion for reconsideration under the Local Rule 7-9(b) standard.

3

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1 prong. (Dkt. No. 81 at 16-20.) In reaching that determination, the Court noted that the 2017

2 Guidance is not binding on schools and does not require them to comply with the Guidance or face

3 legal consequences, but instead, “merely provides ‘information’ for schools regarding how the

4 Department’s Office of Civil Rights will assess [a school’s] compliance” with existing law—Title

5 IX and its implementing regulations. (Id. at 18.) Thus, “if a school is in compliance with Title IX

6 and its regulations, it need not change its policies in response to the 2017 Guidance.” (Id. (noting

7 that “voluntarily changing a policy in response to an agency’s nonbinding enforcement guidance is

8 not the same as being required to do so by the guidance itself.”) (emphasis added)).)

9

Plaintiffs argue that Gill provides “ample grounds” for the Court to reconsider that

10 determination because the Gill court held both that “nonbinding policies can result in legal

11 consequences under Bennett,” and “practical effects alone can render an agency action final.”

12 (Dkt. No. 107 at 4, 7-12.)

13 II. Gill

14

The plaintiffs in Gill sued the Department of Justice under the APA, challenging federal

15 government action that “standardize[d] the sharing of terrorism-related information through the

16 adoption of a ‘Functional Standard.’” 913 F.3d at 1182. The Functional Standard governed the

17 collection, sharing, and use of Suspicious Activity Reports (“SARs”) by federal, state, and local

18 law enforcement agencies through a nationwide information repository (“eGuardian”) accessible

19 to all Nationwide Suspicious Activity Reporting Initiative (“NSI”) participants. Id. The

20 government moved to dismiss the complaint, arguing in part “that the Functional standard did not

21 constitute final agency action pursuant to the APA.” Id. at 1184. The district court denied that

22 motion, but later granted summary judgment in favor of the government on other grounds. The

23 plaintiffs appealed that ruling.

24

On appeal, the Ninth Circuit noted that it “review[s] de novo whether agency action is

25 final,” and that in determining finality for purposes of an APA claim, “[w]e focus on the practical

26 and legal effects of the agency action and interpret finality in a pragmatic and flexible manner.”

27 Id. (quoting Or. Nat. Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006)).

28

The government argued that the Functional Standard did not constitute final agency action

4

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1 under the second Bennett prong because it “merely provides guidelines for [agencies’] voluntary

2 participation and does not impose binding obligations.” Id. (alteration in original). The plaintiffs

3 countered that “the Functional Standard has legal force because the Department can revoke an

4 agency’s eGuardian membership for violating the terms of the eGuardian User Agreement, which

5 requires compliance with the Standard.” Id. at 1184-85. Further, the plaintiffs argued that

6 “compliance with the Functional Standard is a practical requirement of the NSI, and that this

7 ‘condition on participation’ renders the Functional Standard final.” Id. at 1185. The court agreed

8 with the plaintiffs on both scores, concluding that “the Functional Standard constitutes final

9 agency action because it has legal and practical effects.” Id.

10

First, the Gill court determined that the Functional Standard produced legal consequences

11 despite its nonbinding nature. The court noted:

12

To be sure, participation in the NSI remains within the agencies’

discretion. And, absent that participation, the Functional Standard

13

does not obligate analysts or agencies to send SAR information or

penalize them for sending non-complaint SARS. But, as the

14

Department conceded below, once an agency decides to participate,

the eGuardian User Agreement permits the Department to revoke

15

agency membership for violating various policies, including the

Functional Standard. 16

17 Id. The court determined that potential revocation of eGuardian membership constituted a legal

18 consequence sufficient to demonstrate finality and satisfy the second Bennett prong. In doing so,

19 the court noted that the Functional Standard was not “materially distinguishable” from the

20 challenged agency action in Oregon Natural Desert. Id. (“Like the suspension of permits in

21 Oregon Natural Desert, 465 F.3d at 988, eGuardian membership revocation is a legal

22 consequence.”).

23

The court further concluded that “[t]he Functional Standard is also final agency action

24 because of its practical effects,” based on the agencies’ understanding of the consequences of

25 noncompliance—revocation of eGuardian membership. Id. (discussing Havasupai Tribe v.

26 Provencio, 906 F.3d 1155 (9th Cir. 2018)). In doing so, the court noted:

27

[B]ecause the eGuardian User Agreement permits the Department to

revoke participating agencies’ access for failure to comply with the

28

Functional Standard, once an agency joined the NSI there was the

5

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immediate understanding that its analysts would conform to the

1

Functional Standard when submitting SARs.

2 Id. Thus, the court’s holding regarding finality based on the practical effects of the Functional

3 Standard relied on the same grounds as the court’s holding regarding finality based on the

4 Functional Standard’s legal consequences—the existence and effect of the eGuardian User

5 Agreement.

6 III. Gill’s Effect on this Action

7

As previously discussed, Plaintiffs assert that Gill represents a change of law warranting

8 reconsideration of the Court’s October 2018 order because the Gill court extended and broadened

9 previous Ninth Circuit rulings by holding both that “nonbinding policies can result in legal

10 consequences under Bennett,” and “practical effects alone can render an agency action final.”

11 (Dkt. No. 107 at 4, 7-12.) The Court addresses each argument in turn, and agrees that Gill

12 warrants reconsideration of the October 2018 order to the extent the Court dismissed Plaintiffs’

13 APA claim with prejudice.4

14

A. Legal Consequences

15

Plaintiffs argue that “Gill extends the holding of Oregon Natural Desert,” because it holds

16 “that even loss of membership in a voluntary program based on a breach of a user agreement,

17 rather than a statute or regulation, is a legal consequence under Bennett where that agreement

18 requires that the participant comply with agency policies.” (Dkt. No. 107 at 7.) Plaintiffs assert

19 that like the user agreement in Gill, schools here “sign agreements (in the form of assurances)

20 agreeing not only to comply with the Title IX statute and regulations, but also with policies like

21 the challenged guidance.” (Id. at 7-8 (citing U.S. Dep’t of Educ., Office for Civil Rights,

22 Assurance of Compliance, https://www2.ed.gov/about/offices/list/ocr/letters/boy-scouts-

23

24

4 Defendants argue that, as a threshold matter, Gill does not represent a “material change in the law” and is thus “an inadequate basis for reconsideration.” (Dkt. No. 115 at 8.) The Court

25

disagrees. The Ninth Circuit has noted that district courts have the inherent authority to reconsider interlocutory orders “based on shifting precedent.” Martin, 226 F.3d at 1049 (addressing

26

reconsideration in the context of then C.D. Cal. Local Rule 7.16(b) (now C.D. Cal. Local Rule 718), which tracks the “change in law” requirement for reconsideration under N.D. Cal. Local Rule

27

7-9(b)). Although Gill does not represent a sea change in APA caselaw but instead relies on precedent, it does reflect “shifting precedent” as an extension of how the Ninth Circuit determines

28

finality for purposes of APA claims. Thus, Gill is a proper basis for Plaintiffs’ motion for reconsideration.

6

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1 assurance-form.pdf; U.S. Dep’t of Educ., Revised Assurances Template, 2 https://www2.ed.gov/admins/lead/account/stateplan17/reviseded18100576.pdf).)5 The Assurance 3 of Compliance6 states, in pertinent part:

4

The applicant provides this assurance for the purpose of obtaining

Federal grants, loans, contracts (except contracts of insurance of

5

guaranty), property, discounts, funds made available through the U.S.

Department of Education, or other Federal financial assistance from

6

the Department. This assurance applies to all Federal financial

assistance from or funds made available through the Department,

7

including any that the applicant may seek in the future.

8 U.S. Dep’t of Educ., Assurance of Compliance. Applicants assure that they will comply with Title

9 IX, among other statutes, as well as “[a]ll regulations, guidelines, and standards issued by the

10 Department under any of these statutes.” Id. (emphasis added). The Assurance specifies that it “is

11 binding on the applicant,” and applicants “must comply” with it “to continue receiving Federal

12 financial assistance from the Department.” Id. Thus, the Assurance provides that if the applicant

13 fails to comply, “the financial assistance can be terminated and the applicant can be declared

14 ineligible to receive further assistance.” Id. If the 2017 Guidance constitutes the type of

15 “guidelines” referenced in the Assurance, then Gill supports Plaintiffs’ contention that the

16 Guidance produces legal consequences; specifically, the potential termination of financial

17 assistance for failure to comply.

18

Defendants offer two arguments as to why the Court should reject Plaintiffs’ “assurances

19 argument” regarding the legal consequences of the 2017 Guidance. First, Defendants argue as a

20 “threshold reason” that the argument is untimely because it “was not presented in the first

21 amended complaint, and it was mentioned in only one cursory paragraph of Plaintiffs’ opposition

22

23

5 The Court takes judicial notice of the “assurances” documents because they are matters of public record whose accuracy is not subject to reasonable dispute. See Barron v. Reich, 13 F.3d 1370,

24

1377 (9th Cir. 1994) (noting that at the Rule 12(b)(6) stage district courts may take judicial notice of official government documents). The Court cannot, however, draw inferences from those

25

documents “or take notice of facts that might reasonably be disputed” at this stage. See United States v. Corinthian Colls., 655 F.3d 984, 998-99 (9th Cir. 2011) (taking judicial notice at the Rule

26

12(b)(6) stage of the existence of documents but not factual matter within the documents that was “subject to reasonable dispute.”).

27

6 For purposes of this motion, the Court will address only the Assurance of Compliance. The Revised Assurances Template cited by Plaintiffs was issued in May 2017 and by its terms expired

28

on September 30, 2017. See https://www2.ed.gov/admins/lead/account/stateplan17/reviseded18100576.pdf.

7

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1 to Defendants’ motion to dismiss.” (Dkt. No. 115 at 9 n.1.) The Court disagrees. Plaintiffs now

2 present the argument, which was timely raised in opposition to Defendants’ motion to dismiss, in

3 the context of this action’s similarity to the intervening change in law reflected in Gill. Thus, the

4 assurances argument is suitable for purposes of reconsideration.

5

Second, Defendants argue that the 2017 Guidance “is distinct from the ‘regulations,

6 guidelines, and standards’ referred to in the assurance.” (Id. at 9.) Defendants further argue that

7 they “do[ ] not contend—and to be abundantly clear, will not contend and hereby disclaim[ ] any

8 contention—that the 2017 Guidance is among the documents with which a recipient promises to

9 comply when it signs an Assurance of Compliance.” (Id. at 9-10.) Defendants’ stance clearly

10 differs from the government’s position in Gill, wherein the government conceded at the summary

11 judgment stage that “once an agency decides to participate, the eGuardian User Agreement

12 permits the Department to revoke agency membership for violating various policies, including the

13 Functional Standard.” See Gill, 913 F.3d at 1185 (finding that the eGuardian membership

14 revocation is a legal consequence for purposes of the second Bennett prong).

15

Defendants’ argument, however, can succeed at the motion to dismiss stage only if they

16 have established as a matter of law that the 2017 Guidance is not the type of “guidelines” referred

17 to in the Assurance. They have not. Attorney argument that the guidelines referred to in the

18 Assurance do not encompass the 2017 Guidance does not meet Defendants’ burden, especially on

19 a motion to dismiss where all plausible inferences must be drawn in Plaintiffs’ favor. Further,

20 Defendants’ identification of other guidelines that they contend are the type of guidelines

21 contemplated by the Assurance, (see Dkt. No. 48 at 15), does not mean that as a matter of law the

22 2017 Guidance does not also constitute such “guidelines.” Defendants’ citation to the statute

23 describing the administrative and judicial process for terminating federal funding, (see Dkt. No.

24 115 at 10), likewise does not satisfy their burden because it does not address the Assurance’s

25 affirmative statement that “financial assistance can be terminated and the applicant can be

26 declared ineligible to receive further assistance” for failure to comply, see U.S. Dep’t of Educ.,

27 Assurance of Compliance. While a more fulsome record may establish that the 2017 Guidance is

28 not encompassed by the Assurance, the Court cannot conclude based on the current record that as 8

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1 a matter of law the Assurance does not encompass the 2017 Guidance and that the failure to

2 follow the Guidance therefore cannot produce a legal consequence—withholding of federal funds

3 for violating the Assurance. That said, Defendants are correct that the first amended complaint

4 does not reference the Assurance of Compliance. Thus, Gill does not warrant reconsideration of

5 the Court’s dismissal of Plaintiffs’ APA claim; it does, however, warrant reconsideration of the

6 Court’s dismissal with prejudice. Indeed, Plaintiffs assert that “[i]f this Motion is granted,

7 Plaintiffs will include allegations about these assurances in their amended complaint.” (Dkt. No.

8 116 at 4 n.4.)

9

B. Practical Effects

10

Plaintiffs argue that Gill “holds that practical effects can independently establish finality”

11 regardless of the legal consequences of the challenged government action. The Court is not

12 convinced that the Gill court’s holding regarding finality based on the practical effects of the

13 Functional Standard can carry that weight. The holding instead appears intertwined with the

14 court’s holding regarding the legal consequences because both rely on the eGuardian User

15 Agreement. The Gill court noted that in Havasupai, the court “held a Forest Service Mineral

16 Report was a ‘practical requirement to the continued operation’ of a mine—and therefore final

17 agency action—because the parties ‘understood that mine operations would not resume until’ the

18 Mineral Report’s determination of valid existing rights ‘was completed.’” Gill, 465 F.3d at 1185

19 (quoting Havasupai, 906 F.3d at 1163). The Gill court found that the eGuardian User Agreement

20 triggered a similar “immediate understanding” because participating agencies knew that they had

21 to “conform to the Functional Standard when submitting SARs” or else their membership would

22 be revoked. Id. Thus, the practical effects of the Functional Standard were tied to the eGuardian

23 User Agreement—just like the Functional Standard’s legal consequences. In other words, the

24 practical effects were not entirely independent of the legal consequences.

25

The Assurance provides, in pertinent part, that “[t]he applicant understands that it must

26 comply with” not only “Title IX of the Education Amendments of 1972, as amended, 20 U.S.C.

27 1681 et seq.,” but also “[a]ll regulations, guidelines, and standards issued by the Department”

28 under Title IX “in order to continue receiving Federal financial assistance from the Department.” 9

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1 U.S. Dep’t of Educ., Assurance of Compliance. As with the legal consequences of the 2017

2 Guidance, if the “guidelines” referenced in the Assurance encompass the 2017 Guidance, and

3 universities and colleges believe that they do, then Gill supports the conclusion that the 2017

4 Guidance constitutes final agency action based on its practical effects.

5

***

6

Gill reflects “shifting precedent” regarding the issue of finality and the facts in that case

7 are sufficiently analogous to those here based on the Assurance of Compliance schools must sign

8 to receive federal funding. Accordingly, the Court concludes that reconsideration of its October

9 2018 order is warranted to the extent it dismissed Plaintiffs’ APA claim with prejudice. The first

10 amended complaint does not reference the assurance documents; however, Plaintiffs assert that

11 “[i]f this Motion is granted, Plaintiffs will include allegations about these assurances in their

12 amended complaint.” (Dkt. No. 116 at 4 n.4.) Thus, the Court dismisses the APA claim with

13 leave to amend to include additional factual allegations regarding the finality of the 2017

14 Guidance.

15 IV. Defendants’ Additional Grounds for Dismissal

16

Defendants’ opposition to the instant motion notes that “even if the Court were to

17 reconsider its determination that the 2017 Guidance is not final agency action, that would not

18 necessarily mean that the Court would reverse its dismissal of Plaintiffs’ APA claims.” (Dkt. No.

19 115 n.3.) The Court would instead “need to evaluate Defendants’ alternative arguments in favor

20 of dismissal of Plaintiffs’ APA claims.” (Id.) The Court agrees.

21

Defendants’ motion to dismiss the first amended complaint argued that dismissal of

22 Plaintiffs’ APA claim was warranted both under Rule 12(b) for lack of standing and under Rule

23 12(b)(6) because the 2017 Guidance does not constitute final agency action and Plaintiffs have an 24 adequate remedy outside of their APA claim.7 The Court’s October 2018 order concluded that

25

26

7 Defendants also argued that dismissal was warranted “because the 2017 Guidance is not a legislative rule” requiring notice and comment under 5 U.S.C. § 553.” (Dkt. No. 40 at 26.)

27

Defendants’ opposition to the instant motion reiterates those grounds for dismissal “if the Court were to reconsider its determination that the 2017 Guidance is not final agency action.” (Dkt. No.

28

115 at 12 n.3.) Plaintiffs note, however, that their “APA claims do not include a notice and comment claim, as Defendants previously recognized.” (Dkt. No. 116 at 6 n.6 (citing Defs.’

10

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1 Plaintiffs demonstrated standing for their APA claim, and as previously discussed, Gill warrants

2 reconsideration as to whether the 2017 Guidance constitutes final agency action under Bennett.

3 The Court must thus address whether dismissal is otherwise warranted because Plaintiffs have an

4 adequate remedy.

5

Review of agency action under the APA requires that a plaintiff have “no other adequate

6 remedy in a court.” 5 U.S.C. § 704. Defendants contend that Plaintiffs have an adequate

7 remedy—they can sue schools “directly under Title IX.” (Dkt. No. 40 at 26.) Defendants further

8 argue that “if Plaintiffs believe that universities are acting inconsistently with Title IX because of

9 how [the Department] is interpreting the statute, that is the course they are required to follow.” (Id.

10 (citing Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 383 F.3d 1047, 1047-48 (D.C. Cir.

11 2004)). The Court disagrees.

12

In Nat’l Wrestling Coaches, the “appellants . . . consistently maintained that, in subscribing

13 to Department of Education enforcement policy interpretations, the universities themselves

14 adopted unlawful policies and engaged in unlawful activities.” Id. at 1048. The court denied

15 appellants’ petition for rehearing “because appellants [had] a private cause of action directly

16 against the universities to seek redress for any proscribed acts of sex discrimination committed by

17 the universities.” Id. (citing as controlling the court’s decision in Washington Legal Foundation v.

18 Alexander, 984 F.2d 483 (D.C. Cir. 1993) (“WLF”)). Therefore, appellants’ action against the

19 Department was “barred under 5 U.S.C. § 704” based on the existence of an adequate remedy.

20

The Court finds the dissent in this out-of-circuit case more persuasive, in that it

21 distinguishes “WLF and kindred cases [in which] the agency was accused only of failing to stop or

22 penalize illegal behavior by educational institutions,” and notes that “by contrast, the agency

23 [here] is charged with bullying those institutions into adopting unlawful practices.” Id. at 1051.

24 The dissent concludes that while “it is quite logical to have plaintiffs obtain relief through actions

25 directly against wrongdoers when the agency’s only role is neglect, it makes little sense to extend

26 WLF to a context where the agency itself is, as alleged here, the driving force behind the

27

28

Reply in Supp. Mot. to Dismiss, Dkt. No. 48 at 13).) Thus, the Court need not address dismissal on those grounds.

11

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1 illegality.” Id. Here too, Plaintiffs allege that the Department is the “driving force behind the

2 illegality” in issuing the 2017 Guidance. Plaintiffs seek to vacate the 2017 Guidance and are

3 claiming injury—frustration of organizational mission and diversion of resources—resulting from

4 the issuance of the Guidance, not necessarily its implementation by schools. Based on Plaintiffs’

5 alleged injuries and the nature of the relief sought, the alternative remedy offered by the

6 Department—suing individual schools—offers only “doubtful and limited relief,” and is therefore

7 an inadequate remedy under the APA. See Bowen v. Massachusetts, 487 U.S. 879, 901 (1988)

8 (“[D]oubtful and limited relief . . . is not an adequate substitute” sufficient to bar review under

9 Section 704).

10

Accordingly, the Court denies Defendants’ motion to dismiss the APA claim to the extent

11 Defendants argue dismissal is warranted under 5 U.S.C. § 704 based on the existence of an

12 adequate remedy.

13

CONCLUSION

14

For the reasons set forth above, the Court grants Plaintiffs’ motion for reconsideration of

15 the Court’s October 2018 order based on Gill v. U.S. Dep’t of Justice, 913 F.3d 1179 (9th Cir.

16 2019). The Court amends its dismissal of the APA claim with prejudice to a dismissal with leave

17 to amend. Further, the Court denies Defendants’ motion to dismiss the APA claim to the extent

18 dismissal is based on the existence of an adequate alternative remedy. Plaintiffs shall file an

19 amended complaint within 30 days of this Order.

20

The Court will hold an initial case management conference on May 2, 2019 at 1:30 p.m. A

21 joint case management conference statement shall be filed one week before.

22

This Docket disposes of Docket No. 107.

23

IT IS SO ORDERED.

24 Dated: March 29, 2019

25

26

JACQUELINE SCOTT CORLEY United States Magistrate Judge

27

28 12

 
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United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

SURVJUSTICE INC, et al.,

8

Plaintiffs,

9

v.

10

ELISABETH DEVOS, et al.,

11

Defendants.

Case No.18-cv-00535-JSC
ORDER DENYING MOTION TO INTERVENE Re: Dkt. No. 89

12

13

Six organizations—Women’s and Children’s Advocacy Project, Equal Means Equal,

14 National Coalition Against Violent Athletes, Allies Reaching for Equality, Women Matter, We

15 Are Woman, and SAFE Campuses, LLC (collectively, “Equality Advocates”)—move to intervene

16 as Plaintiffs.1 (Dkt. No. 89.)2 After carefully considering the parties’ submissions, and having

17 had the benefit of oral argument on March 7, 2019, the Court DENIES Equality Advocates’

18 motion to intervene because their motion is untimely, they have failed to establish Article III

19 standing, and Plaintiffs adequately represent their interests.

20

BACKGROUND

21 I. Procedural and Factual Background

22

Plaintiffs filed this lawsuit on January 25, 2018, challenging the lawfulness of the

23 Department of Education’s interpretive guidance regarding Title IX of the Education Amendments

24 of 1972 (Title IX), issued by Defendants on September 22, 2017 (“2017 Guidance”). The

25

26

1 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 18 & 36.) Equality Advocates—not yet a party—has not consented, but the

27

Court may still decide the motion to intervene. See Robert Ito Farm, Inc. v. Cty. of Maui, 842 F.3d 681, 687 (9th Cir. 2016).

28

2 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents.

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1 complaint alleged that the Guidance: (1) violated the Administrative Procedure Act (“APA”); (2)

2 violated the Equal Protection Guarantee of the Fifth Amendment; and (3) constituted an ultra vires

3 action. (Complaint ¶ 2-3.) Plaintiffs amended their complaint on February 21, 2018, and

4 Defendants moved to dismiss the action on May 2, 2018. (Dkt. Nos. 23 & 40.) Equality

5 Advocates filed a motion for leave to file an amicus brief on June 14, 2018, which the Court

6 granted on June 29, 2018. (Dkt. Nos. 46, 47, 57.) The parties appeared for oral argument on July

7 19, 2018. (Dkt. No. 64.) On August 31, 2018, Equality Advocates filed their first motion to

8 intervene. (Dkt. No. 71.) Both Plaintiffs and Defendants opposed that motion. (Dkt. Nos. 74 &

9 75.) The motion was set for hearing on October 18, 2018.

10

Prior to the hearing date, the Court granted Defendants’ motion to dismiss. (Dkt. No. 81.)

11 The Court held that Plaintiffs’ allegations were insufficient to show third party standing to bring

12 an equal protection claim or state a claim for relief for ultra vires action; the Court dismissed both

13 claims with leave to amend. (Id.) The Court dismissed with prejudice Plaintiffs’ APA claim

14 because the 2017 Guidance did not constitute final agency action as a matter of law. (Id.) Three

15 days after the Court granted the motion to dismiss, Equality Advocates withdrew their first motion

16 to intervene. (Dkt. No. 82.) Plaintiffs filed a second amended complaint on October 31, 2018.

17 (Dkt. No. 86.) Equality Advocates moved to intervene for a second time as plaintiffs 20 days

18 later. (Dkt. No. 89.)

19

Equality Advocates seek leave to intervene as a matter of right pursuant to Federal Rule of

20 Civil Procedure 24(a), and in the alternative, seek permissive intervention pursuant to Federal

21 Rule of Civil Procedure 24(b)(1), “to advance claims on behalf of women as a class.” (Dkt. No.

22 89 at 7.) Equality Advocates argue that intervention as of right is warranted because the interest of

23 women as a class are not adequately represented by Plaintiffs, as their only remaining claims are

24 equal protection and ultra vires action claims. Equality Advocates further argue that Plaintiffs’

25 equal protection claim is limited in scope because it only attacks Defendants’ motivation as gender

26 bias and does not assert a claim of unequal treatment.

27

Equality Advocates’ proposed complaint seeks declaratory and injunctive relief under the

28 following nine causes of action: (1) Action in Excess of Authority, APA, 5 U.S.C. § 706(2)(C); (2) 2

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1 Actions Not in Accordance with Law, APA, 5 U.S.C. § 706(2)(A); (3) Actions Contrary to

2 Constitutional Right, Power, Privilege, or Immunity, APA; (4) Actions Unwarranted by Facts,

3 APA; (5) discrimination in violation of Title IX; (6) violation of the Tenth Amendment; (7)

4 violation of the Spending Clause; (8) Declaratory Judgment; (9) Ultra Vires action. (Dkt. No. 89

5 at ¶¶ 58-119.) Equality Advocates seeks a court order: (1) vacating the 2017 Guidance; (2)

6 enjoining Defendants from requiring entities to abide by the guidance; (3) declaring that

7 Defendants have violated the Administrative Procedures Act; (4) declaring that the guidance is

8 unlawful; (5) declaring that the rules are discriminatory; (6) entering a restraining order and

9 permanent nationwide injunction. (Id. at 48.)

10

Both Plaintiffs and Defendants again oppose Equality Advocates’ motion to intervene.

11 (See Dkt. Nos. 90 & 91.)

12

DISCUSSION

13 I. INTERVENTION AS OF RIGHT

14

Federal Rule of Civil Procedure 24(a) provides, in relevant part, that, “[o]n timely motion,

15 the court must permit anyone to intervene who . . . (2) claims an interest relating to the property

16 or transaction that is the subject of the action, and is so situated that disposing of the action may as

17 a practical matter impair or impede the movant's ability to protect its interest, unless existing

18 parties adequately represent that interest.” To establish the right to intervene under Rule 24(a)(2),

19 a third party applicant must satisfy four elements:

20

(1) the intervention application is timely; (2) the applicant has a significant

protectable interest relating to the property or transaction that is the subject of the

21

action; (3) the disposition of the action may, as a practical matter, impair or

22

impede the applicant’s ability to protect its interest; and (4) the existing parties

may not adequately represent the applicant’s interest.

23

24 Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (internal quotation marks and citation

25 omitted). “While an applicant seeking to intervene has the burden to show that these four

26 elements are met, the requirements are broadly interpreted in favor of intervention.” Citizens for

27 Balanced Use v. Montana Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011) (citation omitted).

28 //

3

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1

A. Timeliness

2

Intervention sought as a matter “of right” can be granted only “[o]n timely motion.” Fed.

3 R. Civ. P. 24(a). Timeliness is a threshold question addressed to the court’s sound discretion. The

4 district court’s timeliness determination is reviewable only for an abuse of discretion. NAACP v.

5 New York, 413 U.S. 345, 366 (1973); Smith v. Los Angeles Unified School Dist., 830 F.3d 843,

6 853-854 (9th Cir. 2016). Courts consider the following factors when determining whether

7 intervention was timely: (1) the stage of the proceedings at the time the applicant seeks to

8 intervene; (2) prejudice to the existing parties from applicant’s delay in seeking leave to intervene;

9 and (3) any reason for and the length of delay in seeking intervention (i.e., how long the

10 prospective intervenors knew or reasonably should have known of their interest in the litigation).

11 Smith, 830 F.3d at 854. If a court finds “that the motion to intervene was not timely, [it] need not

12 reach any of the remaining elements of Rule 24.” League of United Latin Am. Citizens v. Wilson,

13 131 F.3d 1297, 1302 (9th Cir. 1997).

14

Equality Advocates do not address the three timeliness factors in their moving papers but

15 instead argue generally that their application is timely because Plaintiffs filed their second

16 amended complaint in October 2018 and “all the issues raised by Equality Advocates have already

17 been submitted in this case, in the form of an amicus brief and previously filed Motion to

18 Intervene.” (Dkt. No. 89 at 16.) Both parties argue that the application is untimely based on the

19 factors outlined in Smith.

20

1. Stage of the Proceedings

21

As discussed above, Plaintiffs filed their second amended complaint on October 31, 2018,

22 following the Court’s October 1, 2018 order granting Defendants’ motion to dismiss the first

23 amended complaint. Defendants argue that the case is at an advanced stage because the parties

24 have already completed two rounds of briefing. Defendants further argue that Equality

25 Advocates’ motion to intervene is untimely because they filed it after the parties agreed on a

26 stipulated briefing schedule for Defendants’ motion to dismiss. Equality Advocates’ only

27 response is that “[p]laintiff filed their amended complaint only a week ago on October 31, 2018.”

28 (Dkt. No. 89 at 16.) This response makes little sense, as Equality Advocates filed their motion to 4

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1 intervene on November 20, 2018, which was three weeks after the second amended complaint was

2 filed. The Court has already ruled on two rounds of motions to dismiss and a motion for

3 reconsideration. Equality Advocates bring claims that have already been substantively decided by

4 the Court. Based on the status of the claims at issue at this stage of the litigation, this factor

5 weighs against timeliness.

6

2. Prejudice to the Existing Parties from Applicant’s Delay

7

The most important factor in determining a motion under Rule 24(a) is whether the

8 applicant’s delay in seeking intervention will prejudice the existing parties. Smith, 830 F.3d at

9 857. Prejudice under this factor is “that which flows from a prospective intervenor’s failure to

10 intervene after he knew, or reasonably should have known, that his interests were not being

11 adequately represented—and not from the fact that including another party in the case might make

12 resolution more difficult.” Id. (internal citations omitted).

13

Equality Advocates argue that the parties will not be prejudiced by intervention because

14 Equality Advocates’ legal arguments were raised in their amicus brief and previous motion to

15 intervene. Nonetheless, Defendants and Plaintiffs argue that they are prejudiced by the

16 introduction of new legal theories, some of which the Court has already dismissed.3 See Smith v.

17 Marsh, 194 F.3d 1045, 1051 (9th Cir. 1999) (finding intervention would prejudice the parties

18 where it would greatly widen the scope of litigation). Plaintiffs argue that they are further

19 prejudiced because if Equality Advocates intervenes, Defendants are likely to move to dismiss

20 Equality Advocates’ additional claims which would require a third round of briefing. The parties’

21 arguments regarding prejudice and undue delay based on the introduction of new claims are

22 persuasive.4

23

24

3 Plaintiffs and Defendants both note that Equality Advocates assert four claims under the APA despite the Courts previous ruling that the 2017 Guidance does not constitute final agency action

25

as a matter of law. While the Court has reconsidered the dismissal with prejudice, (see Dkt. No. 121), granting intervention will require it to duplicate analysis it has already engaged in with the

26

current parties. 4 In their reply, Equality Advocates insist that Defendants and Plaintiffs would not be burdened by

27

Equality Advocates’ APA claims because Plaintiffs did not assert the same facts and legal arguments to support their APA claims. Further, Equality Advocates concedes that Defendants

28

will be required to file another motion to dismiss but argues that this will require few resources since it will mirror the motion to dismiss in the Massachusetts case.

5

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1

In Smith v. Marsh, the Ninth Circuit affirmed the district court’s conclusion that

2 intervention would prejudice the parties where the putative intervenor sought to “inject new issues

3 and matters that are well beyond the scope” of the parties’ claims and defenses, and “many

4 substantive and procedural issues had already been settled by the time of the intervention motion.”

5 194 F.3d at 1051. Although in Smith the length of delay between the complaint and the attempt to

6 intervene (15 months) was longer than the delay here, similar indicators of prejudice apply.

7 Equality Advocates’ additional claims under the Tenth Amendment, Spending Clause, and Title

8 IX generally would expand the scope of the litigation when neither Plaintiffs nor Defendants have

9 addressed any of those legal theories. Smith, 194 F.3d at 1051 (finding that intervenors would

10 prejudice defendants by adding claims challenging the constitutionality of anti-discrimination

11 law). Thus, this factor weighs against timeliness.

12

3. Applicants’ Proffered Reason for Delay

13

The focus of the length of delay prong “is on the date the person attempting to intervene

14 should have been aware his interests would no longer be protected adequately by the parties, rather

15 than the date the person learned of the litigation.” Officers for Justice v. Civil Service Comm'n of

16 City & County of San Francisco, 934 F.2d 1092, 1095 (9th Cir. 1991) (emphasis added) (internal

17 quotation marks and alterations omitted). Equality Advocates assert that they refrained from

18 intervening in the hopes that Plaintiffs would amend their complaint to advance the legal theories

19 set forth by Equality Advocates in their June 2018 amicus brief. (Dkt. No. 89 at 9.) This

20 argument is unpersuasive.

21

Equality Advocates’ motion to intervene acknowledges that Plaintiffs filed their original

22 complaint in January 2018 and first amended complaint the following month, and that “[n]either

23 complaint included a Title IX claim, a Tenth Amendment claim, or a Spending Clause claim.”

24 (Dkt. No. 89 at 11.) Indeed, Plaintiffs assert that counsel for Equality Advocates “tweeted

25 disagreement with the arguments made in the complaint, which disagreement is reflected in the

26 legal arguments [Equality Advocates] now seek to inject into this litigation.” (Dkt. No. 91 at 6.)

27 Equality Advocates also acknowledge that they were aware at the time Plaintiffs opposed

28 Defendants’ first motion to dismiss in June 2018 that Plaintiffs failed “to address[ ] or 6

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1 advocate[ ] for equal treatment of women.” (Id.) At oral argument Equality Advocates explained

2 that they delayed moving to intervene in the hopes that Plaintiffs would change their tact. But

3 differences in litigation strategy is an insufficient explanation for delay. League of United Latin

4 Am. Citizens, 131 F.3d at 1306 (finding that because differences in litigation strategy did not

5 satisfy the inadequate representation prong because such differences could not justify the

6 applicants’ delay).

7

In sum, Equality Advocates’ proposed reason for delay fails to excuse their delay in

8 seeking to intervene. Thus, this factor weighs against intervention.

9

***

10

Equality Advocates’ motion to intervene is not timely. The Court may deny Equality

11 Advocates motion to intervene on this basis alone. See League of United Latin Am. Citizens, 131

12 F.3d at 1302 (“[I]f we find that the motion to intervene was not timely, [we] need not reach any of

13 the remaining elements of Rule 24.”) (internal quotation marks and citation omitted). Even if

14 timeliness was met, however, the remaining Rule 24(a)(2) elements are not satisfied.

15

B. Significant Protectable Interest Relating to the Controversy

16

Equality Advocates have not adequately alleged standing; therefore, they have not satisfied

17 the significant protectable interest prong of Rule 24(a)(2). Standing is implicitly addressed in the

18 significant interest requirement. Southwest Ctr. for Biological Diversity v. Berg, 268 F.3d 810,

19 821, n.3. (9th Cir. 2001); see also Perry v. Schwarzenegger, 630 F.3d 898, 904 (9th Cir. 2011)

20 (analyzing standing under the significant protectable interest prong).

21

An intervenor of right must demonstrate Article III standing when it seeks additional relief

22 beyond that which the plaintiff requests. Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct.

23 1645, 1651 (2017); see also Hill v. Volkswagen, 894 F.3d 1030, 1044 (9th Cir. 2018) (finding no

24 intervention as of right where requested relief goes beyond what the plaintiff requested and

25 intervenor has not adequately alleged Article III standing). Equality Advocates’

26 proposed complaint seeks a court order: (1) vacating the 2017 Guidance; (2) enjoining Defendants

27 from requiring entities to abide by the guidance; (3) declaring that Defendants have violated the

28 Administrative Procedures Act; (4) declaring that the guidance is unlawful; (5) declaring that the 7

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1 rules are discriminatory; and (6) entering a restraining order and permanent nationwide injunction.

2 Plaintiffs’ second amended complaint seeks a court order: (1) declaring the Dear Colleague Letter

3 and the Q&A issued in September 2017 unlawful; (2) an injunction ordering Defendants to vacate

4 the Dear Colleague Letter and the Q&A issued in September 2017; (3) an award of Plaintiffs

5 costs, attorneys’ fees, and other disbursements for this action; and (4) any other relief this Court

6 deems appropriate. Because Equality Advocates proposed complaint seeks additional claims for

7 relief beyond what Plaintiffs’ request, Equality Advocates must establish Article III standing.

8

Equality Advocates argue that they have standing under a “zone of interest” of Title IX,

9 but as Defendants argue, they fail to show Article III standing as either an association or an

10 organization. Equality Advocates’ reliance on standing under a “zone of interest” test fails absent

11 a showing that they also satisfy Article III standing. See Pit River Tribe v. BLM, 793 F.3d 1147,

12 1155 (9th Cir. 2015) (noting that the plaintiff is required to have Article III standing and to be in

13 the zone of interest protected or regulated by the statute); see also Federal Election Commission v.

14 Akins, 524 U.S. 11, 19-20 (1998) (addressing both the zone-of-interests test and Article III

15 standing). Equality Advocates could have established Article III standing by sufficiently pleading

16 organizational or associational standing. See Smith v. Pacific Props. & Dev. Corp., 358 F.3d

17 1097, 1105 (9th Cir. 2004) ( “[A]n organization may satisfy the Article III requirement of injury in

18 fact if it can demonstrate: (1) frustration of its organizational mission [by defendant’s actions]; and

19 (2) diversion of its resources to combat [that frustration].”); Western Watersheds Project v.

20 Kraayenbrink, 620 F.3d 1187, 1198 (9th Cir. 2010) (finding that since intervenors had

21 associational standing to pursue the appeal they had Article III standing). However, Equality

22 Advocates do not argue that they have organizational or associational standing and, as discussed

23 below, the proposed complaint fails to plead facts demonstrating either associational or

24 organizational standing.

25

1. Organizational Standing

26

Under organizational standing, “[a]n organization may satisfy the Article III requirements

27 of injury in fact if it can demonstrate: (1) frustration of its organizational mission [by the

28 defendant’s actions]; and (2) diversion of its resources to combat [that frustration].” Smith v. Pac. 8

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1 Props. & Dev. Corp., 358 F.3d 1097, 1105 (9th Cir. 2004). Here, each intervenor must establish

2 its own standing.

3

a. Frustration of Organizational Mission

4

Where a defendant’s conduct has “perceptibly impaired” an organizational plaintiff’s

5 “ability to provide [services to its clients], there can be no question that the organization has

6 suffered injury in fact.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). Here, the

7 only intervenor who alleges that it has clients who suffered an injury as a result of the 2017

8 Guidance is the Women’s and Children’s Advocacy Project (“WCAP”). WCAP alleges that two

9 of its clients were “subjected to policies and procedures that afforded them separate, different and

10 worse treatment compared to the policies and procedures afforded to students who suffered harms

11 based on race and national origin. Both clients filed complaints with the Department of

12 Education’s Office for Civil Rights before the DeVos Rules were issued.” (Dkt. No. 89 at 13.)

13 However, WCAP has not satisfied the second prong of organizational standing, which requires

14 diversion of resources.

15

The other five intervenors do not adequately allege that their organizational missions have

16 been frustrated as a result of the 2017 Title IX policy change. The five intervenors other than

17 WCAP provide their mission and organization history as a basis for their interest in this litigation.

18 Several of the intervenors —Equal Means Equal, National Coalition Against Violent Athletes,

19 Allies Reaching for Equality, Safe Campuses, LLC—allege that since the release of the 2017

20 Guidance, they have “served many women and victims of sex-based harms who were subjected to

21 discrimination by schools in the form of separate, different, and unequal treatment in the response

22 to and redress of sex-based harm on campus.” (Dkt. No. 89 at 13-16.) However, this does not

23 sufficiently allege that they have observed a decrease in student-filed complaints, have been

24 frustrated due to declines in reporting, or that the 2017 Guidance made it more difficult to obtain

25 beneficial outcomes for their clients. Simply stating their organizational mission and that they

26 have served clients after the 2017 Guidance is not enough to show that Defendants’ conduct has

27 “perceptibly impaired” an organizational plaintiff’s “ability to provide [services to its clients].”

28 9

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United States District Court Northern District of California

1 Havens, 455 U.S. at 379. Therefore, they have not sufficiently alleged that their organizational

2 mission is frustrated such that they have standing.

3

b. Diversion of Resources

4

“[A] diversion-of-resources injury is sufficient to establish organizational standing at the

5 pleading stage, even when it is ‘broadly alleged.’” Nat’l Council of La Raza v. Cegavske, 800

6 F.3d 1032, 1040 (9th Cir. 2015) (quoting Havens, 455 U.S. at 379). Equality Advocates have not

7 sufficiently pled any diversion-of-resources injury.

8

Equality Advocates have not sufficiently alleged that the 2017 Guidance has required them

9 to divert resources that otherwise “would have been spent on some other activity that advances

10 their goals.” See Nat’l Council of La Raza, 800 F.3d at 1040 (finding organizational standing

11 where plaintiffs were not “simply going about their ‘business as usual,’ unaffected by

12 [defendant’s] conduct.”); see also Smith, 358 F.3d at 1105 (allegations of diversion of resources

13 sufficient to survive motion to dismiss where plaintiff-organization “specifically stated in its

14 complaint that ‘in order to monitor the violations and educate the public regarding the

15 discrimination at issue, [plaintiff] has had (and, until the discrimination is corrected, will continue)

16 to divert its scarce resources from other efforts to [further its mission]’ ”). Equality Advocates do

17 not make any claims that they have had to increase the number of students’ rights trainings,

18 increase staff attention to Title IX policy, or divert staff resources to getting school officials to

19 respond to complaints.

20

Equality Advocates, as a whole, provide no allegations as to how their resources have been

21 diverted from other matters due to the 2017 Guidance.

22

2. Associational Standing

23

“[A]n association has standing to bring suit on behalf of its members when: (a) its

24 members would otherwise have standing to sue in their own right; (b) the interests it seeks to

25 protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief

26 requested requires the participation of individual members in the lawsuit.” United Food &

27 Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 553 (1996) (internal

28 quotation marks and citation omitted). Equality Advocates has not pleaded that that any of the 10

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United States District Court Northern District of California

1 intervenors are associations or that they have members; thus, they do not establish Article III

2 associational standing.

3

***

4

Equality Advocates have not established that they have standing to intervene; therefore,

5 they do not have a significant protectable interest in this litigation. Southwest Ctr. for Biological

6 Diversity, 268 F.3d at 810 n.3.

7

C. Whether Disposition Will Impair or Impede Equality Advocates’ Interest

8

The third intervention prong considers whether the disposition of the action may, as a

9 practical matter, impair or impede the applicant’s ability to protect its interest. Prete, 438 F.3d at

10 954. Equality Advocates make no argument under the third prong, but generally argue that the

11 “interest of women as a class are not adequately represented by the plaintiffs”; namely, because

12 Plaintiffs do not assert any Title IX claim, a Tenth Amendment claim, Spending Clause claim, or

13 claims for women’s rights to equal treatment. (Dkt. No. 89 at 2-3.)

14

Where “other means” exist to protect the intervenors’ interests, such as an alternative

15 forum, the intervenors’ interests may not be impaired. California ex rel. Lockyer v. United States,

16 450 F.3d 436, 442 (9th Cir. 2006). Here, the District of Massachusetts is another forum in which

17 two of the intervenors have pending litigation in which they assert the same Title IX, Spending

18 Clause and Tenth Amendment claims Equality Advocates include in their proposed complaint. As

19 Plaintiffs have not asserted these claims, it is unclear how Equality Advocates’ interests will be

20 impaired by this litigation. And, in any event, Equality Advocates is not bound by a judgment in

21 this Court. This factor, too, warrants denial of the motion to intervene.

22

D. Whether Parties Adequately Represent the Applicant’s Interest

23

A putative intervenor must also show that the existing parties do not adequately represent

24 the intervenor’s interest. Fed. R. Civ. P. 24(a)(2). “If an applicant for intervention and an existing

25 party share the same ultimate objective, a presumption of adequacy of representation arises.”

26 Citizens for Balanced Use v. Montana Wilderness Ass'n, 647 F.3d 893, 898 (9th Cir. 2011). Both

27 Equality Advocates and Plaintiffs seek to have the 2017 Guidance vacated. As long as their

28 objectives are the same, the proposed intervenor’s disagreement with the existing party's litigation 11

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United States District Court Northern District of California

1 strategy or tactics does not make their interests adverse so as to justify intervention. League of

2 United Latin Am. Citizens, 131 F.3d at 1306.

3

In their reply, Equality Advocates argue that their objectives are not the same as Plaintiffs

4 because Equality Advocates seeks a “declaration that the Rules are discriminatory” and “a

5 nationwide injunction.” This argument is unpersuasive because the ultimate purpose of this

6 litigation is the same: to vacate the 2017 Guidance. Equality Advocates’ argument that Plaintiffs

7 do not adequately represent them because they fail to assert Tenth Amendment, Spending Clause,

8 and Title IX claims is also unavailing because this merely reflects a difference in litigation

9 strategy and not the ultimate objective. L.A. Taxi Coop., Inc. v. Uber Techs., Inc., No. 15-cv-

10 01257-JST, 2015 U.S. Dist. LEXIS 114227, at *12 (N.D. Cal. Aug. 27, 2015) (finding that

11 intervenors argument that plaintiffs do not adequately represent them because they did not

12 challenge the constitutionality of the defendant’s actions were differences in litigation strategy);

13 See Renewable Land, LLC v. Rising Tree Wind Farm LLC, No. 1:12-cv-00809-RJT, 2013 U.S

14 .Dist. LEXIS 34908, at *10 (E.D. Cal. Mar. 11, 2013) (finding that intervenors motion for

15 preliminary injunction amounted to nothing more than differences in litigation strategy). In sum,

16 Equality Advocates have not established that Plaintiffs do not adequately represent Equality

17 Advocates’ ultimate interest. ***
18

19

The Court DENIES Equality Advocates’ Rule 24(a)(2) motion to intervene as of right

20 because Equality Advocates have not established that (1) they timely moved to intervene, (2) they

21 have a protectable interest in the lawsuit’s subject matter, (3) that any interest they may have will

22 as a practical matter be impaired by the disposition of this lawsuit, or (4) that Plaintiffs will not

23 adequately protect those interests.

24 II. PERMISSIVE INTERVENTION

25

Rule 24(b)(1)(B) provides that “[o]n timely motion, the court may permit anyone to

26 intervene who . . . has a claim or defense that shares with the main action a common question of

27 law or fact.” Fed. R. Civ. P. 24(b)(1)(B). In the Ninth Circuit, permissive intervention generally

28 requires: “(1) an independent ground for jurisdiction; (2) a timely motion; and (3) a common 12

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United States District Court Northern District of California

1 question of law and fact between the movant’s claim or defense and the main action.” Freedom

2 From Religion Found., Inc. v. Geithner, 644 F.3d 836, 843 (9th Cir. 2011). Even if an applicant

3 satisfies those threshold requirements, the district court has discretion to deny permissive

4 intervention. See Orange v. Air Cal., 799 F.2d 535, 539 (9th Cir.1986) (“Permissive intervention

5 is committed to the broad discretion of the district court.”). Where a litigant timely presents such

6 an interest in intervention, courts consider a number of factors in deciding whether to permit

7 intervention, including:

8

the nature and extent of the intervenors’ interest, their standing to raise relevant

legal issues, the legal position they seek to advance, and its probable relation to the

9

merits of the case[,] whether changes have occurred in the litigation so that

10

intervention that was once denied should be reexamined, whether the intervenors’

interests are adequately represented by other parties, whether intervention will

11

prolong or unduly delay the litigation, and whether parties seeking intervention

will significantly contribute to full development of the underlying factual issues in

12

the suit and to the just and equitable adjudication of the legal questions presented.

13 Spangler v. Pasadena Bd. of Educ., 552 F.2d 1326, 1329 (9th Cir. 1977) (footnotes omitted).
14 As discussed above, Equality Advocates’ motion is untimely. League of United Latin Am.
15 Citizens, 131 F.3d at 1308 (“In the context of permissive intervention . . . we analyze the
16 timeliness element more strictly than we do with intervention as of right.”). Equality Advocates
17 had notice of Plaintiffs’ arguments at the outset of this litigation and chose to file an amicus brief
18 instead of seeking to intervene. Further, Equality Advocates have not established Article III
19 standing. Additionally, Plaintiffs will be able to adequately represent Equality Advocates in this
20 litigation as both parties’ ultimate objective is the same. The Court declines to exercise its
21 discretion to permit Equality Advocates to intervene.
22 CONCLUSION
23 For the reasons discussed above, the Court DENIES Equality Advocates’ Motion for
24 Leave to Intervene under Federal Rules of Civil Procedure 24(a)(2) and 24(b)(1)(B).
25 This Order disposes of Docket No. 89.
26

27 // 28 //
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United States District Court Northern District of California

1

IT IS SO ORDERED.

2 Dated: March 29, 2019

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JACQUELINE SCOTT CORLEY United States Magistrate Judge
14

 
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Jennifer A. Reisch (CA Bar No. 223671) 1 Equal Rights Advocates
2 1170 Market Street, Suite 700 San Francisco, CA 94102
3 Ph: (415) 621-0672 Fax: (415) 621-6744
4 Email: jreisch@equalrights.org

5 Javier M. Guzman*

6 Robin Thurston* Karianne Jones*

7 Democracy Forward Foundation 1333 H St. NW
8 Washington, DC 20005

9

Ph: (202) 448-9090 Fax: (202) 701-1775

10 Emails: jguzman@democracyforward.org, rthurston@democracyforward.org, kjones@democracyforward.org
11

Leecia Welch (CA Bar No. 208741) 12 Seth Galanter*

13

Alice Y. Abrokwa* National Center for Youth Law

14 405 14th Street, 15th Floor Oakland, CA 94612, and
15 1313 L Street, NW, Suite 130

Washington, DC 20005 16 Ph: (510) 835-8098

17 Fax: (510) 835-8099 Emails: lwelch@youthlaw.org, sgalanter@youthlaw.com, aabrokwa@youthlaw.org

18 Emily Martin*
19 Neena Chaudhry*

Sunu Chandy* 20 National Women’s Law Center

21 11 Dupont Circle, NW, Suite 800 Washington, DC 20036

22 Ph: (202) 588-5180 Fax: (202) 588-5185
23 Emails: emartin@nwlc.org, nchaudhry@nwlc.org, schandy@nwlc.org

24 *pro hac vice
25 Counsel for Plaintiffs
26

27

28

Third Amended Complaint; Case No.: 3:18-cv-00535-JSC

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Case 3:18-cv-00535-JSC Document 123 Filed 04/18/19 Page 2 of 52

UNITED STATES DISTRICT COURT

1

NORTHERN DISTRICT OF CALIFORNIA

2

SAN FRANCISCO DIVISION

3 SURVJUSTICE, INC., 1015 15th Street NW, Suite 632

) )

4 Washington, DC 20005,

) )

5 EQUAL RIGHTS ADVOCATES

) )

6 1170 Market Street, Suite 700 San Francisco, CA 94102,

) )

7 VICTIM RIGHTS LAW CENTER

) )

8 520 SW Yamhill Street Portland, OR 97204,
9

) ) ) )

10

Plaintiffs,

) )

11 v.

) )

12 ELISABETH D. DEVOS, in her official

) )

capacity as Secretary of Education, 13 400 Maryland Avenue SW

) )

14 Washington, DC 20202,

) )

15 KENNETH L. MARCUS, in his official
capacity as Assistant Secretary for Civil 16 Rights,

) ) ) )

17

400 Maryland Avenue SW Washington, DC 20202,

) )

18

U.S. DEPARTMENT OF EDUCATION,

) )

19 400 Maryland Avenue SW Washington, DC 20202,
20

) ) ) )

21

Defendants.

) )

22

Case Number: 3:18-cv-00535-JSC
THIRD AMENDED COMPLAINT FOR INJUNCTIVE RELIEF

23 1.
24

Plaintiffs SurvJustice, Inc., Equal Rights Advocates, and Victim Rights Law Center bring

this action against Defendants U.S. Department of Education (“the Department” or “the 25

26 agency”), Secretary Elisabeth DeVos, and Assistant Secretary for Civil Rights Kenneth L.

27 Marcus seeking vacatur of the Department’s new policy, as expressed in a Dear Colleague Letter

28

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Case 3:18-cv-00535-JSC Document 123 Filed 04/18/19 Page 3 of 52

and Question and Answers guidance issued on September 22, 2017 (hereinafter jointly referred 1 2 to as the “2017 Title IX Policy” or “Policy”), concerning Title IX of the Education Amendments
3 of 1972 (“Title IX”).
4 2. Over 45 years ago, Congress enacted Title IX to prohibit discrimination on the basis of 5 sex in educational programs and activities receiving federal financial assistance (hereinafter 6
“recipients” or “educational institutions”). This landmark civil rights law has helped fight sex 7
discrimination and promote equal educational access and opportunities for girls and women from 8 9 the classroom to the playing field. 10 3. Twenty years ago, acting on the basis of Supreme Court decisions and the recognition
11 that Title IX’s promise of equality is hollow if a student can be subjected to sexual harassment
12 with impunity, the Department issued its first guidance to educational institutions (both K-12 13 schools and institutions of higher education) on the standards that govern their response to sexual 14
harassment, a form of sex discrimination. Since then, through several successive guidance 15
materials issued under Administrations led by both political parties, the Department has 16 17 reaffirmed that Title IX’s prohibition on sex discrimination requires recipients to prevent and 18 redress sex and gender-based harassment. These policies recognize that students who experience
19 sexual harassment, including in its most extreme form, sexual violence, suffer not only
20 physically and emotionally, but also in their ability to participate in and benefit from educational 21
opportunities, on the basis of their sex. 22
23
24
25
26
27
28

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4. The reaffirmation of Title IX’s protections continued until September 2017, when the 1 2 Department formally rescinded sexual violence guidance documents issued in 2011 and 2014

3 and issued new conflicting policy documents to educational institutions.1

4 5. The 2017 Title IX Policy imposes significant changes on educational institutions and on
5 students to the detriment of survivors of sexual violence. For example, whereas previous 6
Department Title IX guidance advised educational institutions to make available interim 7
measures, such as a revised class schedule or new housing assignment, in order to protect the 8 9 safety of students who complain of sexual harassment and preserve their access to an education,
10 the 2017 Title IX Policy prohibits schools from making available interim measures to a

11 complainant unless they are offered “on equal terms” to respondent(s) who are being

12 investigated for sexual misconduct. The 2017 Title IX Policy also removes protections for sexual
13 harassment victims, such as by allowing schools to resolve complaints through mediation 14
between the parties, even in cases of alleged sexual assault, where the pressure to agree to 15
mediation can be coercive. 16
17 6. The 2017 Title IX Policy is substantively unlawful. It conflicts with existing Title IX

18 requirements and fails to provide a reasoned justification for its reversal in position. It is also

19 based on a legally and factually mistaken view that earlier guidance limited due process

20 protections for students. And in issuing the 2017 Title IX Policy, the Department failed to take
21 into account reliance interests that students, and organizations like Plaintiffs that work with
22 students, have in the protections set out in prior guidance documents. Instead, the 2017 Title IX
23

24

25 1 See U.S. Dep’t of Educ., Ltr. from Ass’t Sec’y Candice Jackson (Sept. 22, 2017),

26

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf (“2017 Dear Colleague Letter”); U.S. Dep’t of Educ., Q&A on Campus Sexual Misconduct (Sept. 22, 2017),

27 https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf (“2017 Q&A”).

28

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Policy, which disproportionately burdens women and girls, was motivated by the baseless and 1 2 discriminatory but longstanding stereotype that women and girls tend to lie about or exaggerate

3 experiences of sexual assault and harassment.

4 7. Plaintiffs therefore respectfully request that the 2017 Title IX Policy be vacated.

5

Jurisdiction and Venue

6 8.
7 9.
8

This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331. Venue is proper under 28 U.S.C. § 1391(e) because Equal Rights Advocates, a plaintiff,

9 resides in San Francisco, California.

10

Intradistrict Assignment

11 10. Filing is proper in this Judicial District because Equal Rights Advocates, a plaintiff, is

12 located in San Francisco, California.

13

Parties

14 11.
15

Plaintiff SurvJustice, Inc., (“SurvJustice”) is a national not-for-profit organization based

in Washington, D.C., founded in 2014. SurvJustice’s mission is to increase the prospect of 16

17 justice for survivors of sexual violence. It pursues this goal through legal assistance, policy

18 advocacy, and institutional training. Through its efforts, SurvJustice aims to decrease the

19 prevalence of sexual violence throughout the country.

20 12. SurvJustice provides legal assistance to survivors of sexual violence in campus
21 proceedings, as well as civil and criminal legal systems. The majority of requests for legal
22 assistance that SurvJustice receives are from students at institutions of higher education.
23 24 SurvJustice staff help sexual violence survivors navigate the campus grievance process,
25 including by reporting the violence; assisting survivors throughout any investigation; advising

26 survivors in campus hearings; helping survivors with any appeals; and helping survivors access

27

28

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accommodations and services from their educational institutions. They frequently serve as 1 2 “advisors of choice” for college students in institutional disciplinary actions for cases of alleged

3 domestic violence, dating violence, sexual assault, or stalking, as provided for by the Clery Act

4 as amended by the 2013 Violence Against Women Reauthorization Act, 20 U.S.C. §
5 1092(f)(8)(B)(iv)(II) (“Clery Act”). SurvJustice staff also represent survivors in civil litigation or 6
refer survivors to other qualified lawyers for such representation. SurvJustice also assists 7
survivors in reporting crimes to law enforcement, in advocating for prosecution, and by serving 8 9 as media representatives for victims and their families in high-profile criminal cases.
10 13. SurvJustice also trains educational institutions to prevent and address sexual violence

11 through compliance with federal law, enforcement of victims’ rights, and adoption of best

12 practices that include development of a culture that supports survivors and encourages “sexual
13 respect” (i.e., respect in sexual interactions and relationships). As part of this work, SurvJustice 14
has provided the annual training required by the Clery Act to various campus officials across the 15
country who investigate and adjudicate complaints of sexual assault, dating violence, domestic 16
17 violence, and stalking.

18 14. SurvJustice also engages in policy advocacy by providing technical assistance and advice

19 to legislators and policymakers on various state and federal legislation and policy efforts

20 regarding sexual violence, and by working with changemakers within their communities on local

21 policy efforts, especially on college and university campuses.

22 15.
23

SurvJustice brings this action on its own behalf because the challenged 2017 Title IX

Policy (i) requires resource-intensive efforts that impede its daily operations; (ii) limits the 24

25 efficacy of available avenues of redress for the students it serves; (iii) increases the costs it bears

26 in its work on behalf of sexual violence survivors—for example, by causing it to waive intake

27

28

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fees and reduce or waive speaking fees; and (iv) otherwise directly conflicts with, impairs, and 1 2 frustrates SurvJustice’s organizational mission and priorities.

3 16. As an organization that provides direct assistance and referral services to survivors of

4 sexual violence, SurvJustice’s core mission and daily operations have been and will continue to
5 be impeded by the chilling effect that the 2017 Title IX Policy has had and continues to have on 6
the reporting of sexual violence. 7
17. Following and as a result of the 2017 Title IX Policy change, SurvJustice experienced a 8 9 decrease in the number of sexual violence survivors seeking its services. This trend is borne out
10 by SurvJustice’s interactions with particular college and university students who have questioned

11 whether they should continue with their plans to report sexual violence given the uncertainty

12 regarding their legal protections and an anticipated lowered likelihood of success created by the

13 policy change.

14 18.
15

Following the 2017 Title IX Policy change and as a result of the change, SurvJustice has

provided an increased number of student rights trainings at college and university campuses. 16

17 These additional trainings are necessary to respond to confusion created by the 2017 Title IX

18 Policy among students about their legal rights. SurvJustice has also significantly reduced its price

19 for doing these trainings or agreed to provide them pro bono in response to increased need

20 resulting from the widespread uncertainty among students regarding their legal protections

21 following the 2017 Title IX Policy change.

22 19.
23

SurvJustice has also had to devote significant staff time to reviewing and understanding

the 2017 Title IX Policy in order to advise clients in ongoing campus investigations and advocate 24

25 on their behalf. This shift in use of time due to the change in policy decreased the amount of time

26

27

28

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that SurvJustice has available to provide legal services, including work on ongoing civil 1 2 litigation.

3 20. The 2017 Title IX Policy makes it more difficult for SurvJustice to accomplish its

4 mission of obtaining justice for survivors of sexual violence, both because it makes beneficial
5 outcomes less likely for survivors and because even where those outcomes are still available, 6
success will take more staff time and effort. 7
21. For example, SurvJustice often advocates for schools to provide accommodations to its 8 9 clients, including during the pendency of an investigation, so that they can continue to learn
10 safely. SurvJustice often requests unilateral no-contact orders on its clients’ behalf but has

11 opposed mutual no-contact orders because they tend to be retaliatory.2 Yet the agency’s Title IX

12 Policy change requires no-contact orders to be mutual, by prohibiting a school from making
13 interim measures available to only one party. SurvJustice has observed schools issuing mutual no 14
contact orders on a regular basis. The 2017 Title IX Policy therefore impedes SurvJustice’s 15
mission by making it more difficult for SurvJustice to obtain interim measures that are 16
17 appropriate for survivors of sexual harassment and to ensure ongoing access to education for its

18 clients in accordance with its mission.

19 22. In addition, since the 2017 Title IX Policy no longer identifies any benchmarks to

20 determine whether educational institutions are meeting their obligation to resolve reports of
21 sexual violence in a timely fashion, SurvJustice has observed a trend in educational institutions
22 not responding at all, or not responding as promptly, to its clients’ complaints. This trend has
23

24 2 SurvJustice argues that mutual no-contact orders are forms of retaliation when there is no basis
25 to place the order against victim-complainants other than the fact that they made a Title IX

26

complaint. In such instances, schools limit victims’ access to educational opportunities and benefits as a direct result of the victims’ assertion of their federal rights and utilization of the

27 Title IX grievance process.

28

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required SurvJustice to spend additional staff time and resources that it has not had to spend in 1 2 the past attempting to get school officials to respond to a survivor’s complaint of sexual violence.
3 23. The Department’s 2017 Title IX Policy also makes it more difficult for SurvJustice to
4 obtain beneficial results for its clients due to, among other particulars, its endorsement of one-
5 sided appeal rights and a heightened standard of evidence that disfavors survivors and makes 6
findings of responsibility for sexual misconduct more onerous. 7
24. Plaintiff Equal Rights Advocates (“ERA”) is a national non-profit civil rights 8 9 organization based in San Francisco, California. Founded in 1974, ERA is dedicated to 10 protecting and expanding economic educational access and opportunities for women and girls.
11 25. ERA furthers its mission through engaging in public education efforts, as well as policy
12 reform and legislative advocacy; providing free legal information and counseling; and litigating 13 cases involving issues of gender discrimination in employment and education at all stages, from 14
the administrative agency process through and including the United States Supreme Court. ERA 15
has a long history of pursuing gender justice and equal opportunity for women and girls in 16 17 education and has litigated a number of important precedent-setting cases under Title IX,
18 including Doe v. Petaluma City School District, 54 F.3d 1447 (9th Cir. 1995), which held for the
19 first time that a school can be sued for sex discrimination under that law when it fails to address
20 one student’s serious harassment of another. ERA has participated as amicus curiae in scores of 21
state and federal cases involving the interpretation and application of procedural rules and civil 22
rights laws that have an impact on access to justice and economic opportunity for women and 23
girls. Through its Advice and Counseling program, ERA also provides free information and 24 25 assists individuals on matters relating to sex and gender discrimination at work and in school. As
26
27
28

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part of its mission, ERA counsels and represents women who have been victims of sexual 1 2 harassment and/or sexual assault in matters pursuant to Title IX.
3 26. ERA brings this action on its own behalf because the challenged 2017 Title IX Policy (i)
4 requires resource-intensive efforts that divert resources from its daily operations; (ii) limits the
5 efficacy of available avenues of redress to ERA’s clients and others it serves, (iii) increases the 6
costs ERA bears in its work on behalf of student survivors of sexual violence; and (iv) otherwise 7
directly conflicts with, impairs, and frustrates ERA’s organizational mission and programmatic 8 9 priorities. 10 27. ERA has had to expend resources over and above what it would otherwise have expended
11 in order to counteract the effects of the 2017 Title IX Policy change. For example, to counteract
12 the effects of the Title IX Policy change, ERA has had to divert staff time and resources away 13 from core programmatic activities, such as litigating employment-related civil rights 14
enforcement cases and cases involving Title IX enforcement that do not relate to sexual violence 15
in schools, in order to step up its efforts to assist victims of sexual harassment and assault in 16 17 educational settings obtain redress. In particular, ERA has launched a national initiative to End
18 Sexual Violence in Education (“ESVE”) to narrow a justice gap for survivors of sexual violence
19 that ERA has observed is expanding rapidly given the unlawful actions Defendants have taken.
20 Through the ESVE Initiative, which was launched as a result of the Department’s 2017 Title IX 21
Policy change, ERA is expanding its Advice & Counseling program, re-designing its intake 22
process, and developing new resources to better reach and serve individuals facing sexual 23
harassment and violence in schools. Additionally, as part of ESVE and in order to counteract the 24 25 negative impact of policy changes and rollbacks at the federal level on ERA’s clients and the
26 communities it serves, ERA is expending resources and diverting resources away from core
27
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programmatic activities in order to establish a network of attorneys to provide pro bono 1 2 counseling and other assistance to victims of sexual harassment and assault in schools. In order

3 to recruit, train, and support these pro bono attorneys and to meet the increased demand for legal

4 assistance in this area, ERA created a new position and hired its first-ever Pro Bono Coordinator.
5 It also is planning to build a new website where advocates for survivors can find and share 6
resources with each other. 7
28. Moreover, as an organization that has a longstanding history of providing direct 8 9 assistance and referral services to survivors of sexual violence, ERA is hampered in its ability to
10 assist the victims of sexual harassment and assault that it represents and counsels in obtaining

11 equitable outcomes and redress for the harms they have suffered. In particular, and as discussed

12 more fully below, the 2017 Title IX Policy permits schools to offer asymmetric appellate rights
13 that disadvantage victims of sexual harassment, including sexual assault; tells schools to make 14
interim safety measures, such as no-contact orders, available on “equal terms” to complainants 15
and respondents during the pendency of an investigation without any allegation that the 16
17 complainant committed any misconduct or may have done something that undermines the

18 respondent’s sense of safety; permits schools to evade responsibility for protecting students and

19 the school community as a whole by resolving claims of sexual assault privately through

20 mediation; and rolls back other critical protections for survivors that inhibit ERA’s ability to

21 obtain redress and achieve results for its clients.

22 29.
23

Plaintiff Victim Rights Law Center (“VRLC”) is a non-profit organization with

locations in Oregon and Massachusetts dedicated solely to serving the legal needs of rape and 24

25 sexual assault victims. VRLC’s mission is to provide legal representation to victims of rape and

26

27

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sexual assault to help rebuild their lives and to promote a national movement committed to 1 2 seeking justice for every rape and sexual assault victim.
3 30. VRLC provides legal free, comprehensive services to help restore victims’ lives after
4 experiencing sexual violence, ensuring that survivors may stay in school; protecting their
5 privileged and confidential mental health, medical, and education records; preserving their 6
employment; maintaining safe housing; securing their immigration status; and swiftly accessing 7
victim compensation and other benefits. As part of its work, VRLC provides legal services 8 9 and/or facilitates the provision of legal services to individuals who have experienced sexual 10 violence and/or assault on elementary, secondary, and higher education campuses. With almost
11 50 percent of VRLC’s clients under the age of 24, a substantial portion of its practice is
12 providing education-related legal consultation and representation. VRLC attorneys represent 13 campus victims to communicate effectively with campus administrators, acquire interim 14
measures and accommodations to secure their education, prepare and attend disciplinary 15
hearings, file appeals, and, if necessary, file complaints with the Department of Education, 16 17 Office of Civil Rights (“OCR”).
18 31. VRLC brings this action on its own behalf because, as detailed below, the challenged
19 Title IX Policy concretely frustrates its mission and purpose through (among other things) (i)
20 requiring resource-intensive efforts that impede its daily operations, (ii) impairing its mission of 21
providing legal assistance to survivors of sexual assault and/or violence, (iii) limiting the efficacy 22
of available avenues of redress for the population it seeks to serve, (iv) requiring that resources 23
be diverted in order to combat the harmful effects of the Title IX Policy, and (v) otherwise 24 25 directly conflicts with, impairs, and frustrates VRLC’s organizational mission and priorities.
26
27
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32. The new 2017 Title IX Policy has been devastating to VRLC’s mission and its 1 2 operational activities. For example, as result of the 2017 Title IX Policy, sexual violence and
3 assault victims have expressed an unwillingness to report harassment and assault to campus
4 authorities, denying VRLC the ability to achieve its mission. VRLC saw an immediate chilling
5 effect after the Department issued its 2017 Dear Colleague Letter and new Title IX Policy. 6
VRLC has seen a decline in the number of sexual violence and assault survivors willing to 7
pursue justice through campus processes. The 2017 Title IX Policy makes it less likely for 8 9 VRLC clients to engage in the campus process due to, among other particulars, its endorsement 10 of one-sided appeal rights and a heightened standard of evidence that disfavors survivors and
11 makes findings of responsibility for sexual assault and violence more onerous. Moreover, as a
12 result of the new Title IX Policy, there has been a decline in the number of survivors willing to 13 file complaints with the Department of Education and/or otherwise communicating with the 14
Department of Education where there is already an investigation pending. Such declines in 15
reporting and hesitance to participate in the grievance process either through educational 16 17 institutions or at the Department of Education directly threaten and frustrate VRLC’s mission
18 and purpose.
19 33. In addition to chilling and discouraging sexual violence and assault victims from availing
20 themselves of campus processes, the new Title IX Policy has made it more difficult for VRLC to 21
provide appropriate legal advice that helps its clients weigh their options with the best 22
information, leading to further reductions in reports of sexual violence and assault. 23
34. In cases where a survivor or victim may proceed with a claim (which is rare under the 24 25 new Title IX Policy), VRLC’s mission remains frustrated given the nature of the Title IX Policy.
26 In particular, the 2017 Title IX Policy makes it more difficult for VRLC to accomplish its
27
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mission of obtaining justice for survivors of sexual violence, both because it makes beneficial 1 2 outcomes less likely for survivors and because even where those outcomes are still available,

3 success will take more staff time and effort. In addition, since the 2017 Title IX Policy no longer

4 requires colleges and universities to resolve reports of sexual violence in a timely fashion, VRLC
5 has observed a trend in educational institutions not responding or not responding as promptly to 6
its clients’ complaints. This trend has required VRLC to spend additional staff time and 7
resources that it has not had to spend in the past attempting to get school officials to respond. 8 9 35. VRLC has also had to devote staff time to reviewing and understanding the 2017 Title IX
10 Policy in order to advise clients in ongoing campus investigations and advocate on their behalf.

11 This use of time has decreased the amount of time that it has available to provide legal services,

12 including work on ongoing civil litigation.
13 36. Defendant U.S. Department of Education (“the Department” or “the agency”) is a 14
federal agency headquartered in Washington, D.C. As discussed more fully below, the 15
Department implements Title IX through issuing regulations and guidance documents and is also 16
17 tasked with administrative enforcement of Title IX, 20 U.S.C. § 1682. As a federal agency, the

18 Department is subject to the requirements of the Administrative Procedure Act and the United

19 States Constitution.

20 37. Defendant Elisabeth D. DeVos is the United States Secretary of Education. She is sued

21 in her official capacity.

22 38.
23

Defendant Kenneth L. Marcus is the Assistant Secretary for Civil Rights. He is sued in

his official capacity. 24

25

26

27

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1 2 39.

Background Sexual harassment—which is conduct including, but not limited to, unwelcome sexual

3 advances, requests for sexual favors, and other unwelcome verbal, nonverbal, or physical

4 conduct of a sexual nature that targets someone because of their sex, including sexual assault or
5 other sexual violence (hereinafter “sexual harassment” or “sexual harassment, including sexual 6
violence”)—is widespread in schools across the country, particularly in institutions of higher 7
education. 8 9 40. Sexual harassment disproportionately impacts women and girls. One in five women and
10 one in fourteen men experience sexual assault while in college.3 As the last Administration’s

11 Task Force to Protect Students from Sexual Assault concluded: “For female bisexual and

12 transgender students, victimization rates are even higher: More than 1 in 4 transgender students 13 and more than 1 in 3 of bisexual students experience sexual assault while in college.”4 14

15

16

17 3 The White House, The Second Report of the White House Task Force to Protect Students from Sexual Assault 9 (Jan. 5, 2017), https://obamawhitehouse.archives.gov/sites/obamawhitehouse.

18 archives.gov/files/images/Documents/1.4.17.VAW%20Event.TF%20Report.PDF. Similarly, a

2007 report found that one in five women were victims of sexual assault while in college and 19 that approximately 6.1 percent of men were victims of sexual assault during college. Krebs, et

20

al., The Campus Sexual Assault (CSA) Study Final Report 5-5 (Oct. 2007), https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf. A report published by the American

21 Association of University Women similarly concluded that: “Girls were more likely than boys to be sexually harassed, by a significant margin (56 percent versus 40 percent) [during the 2010-

22 2011 school year]. Girls were more likely than boys to be sexually harassed both in person (52

percent versus 35 percent) and via text, e-mail, Facebook, or other electronic means (36 percent 23 versus 24 percent). This finding confirms previous research showing that girls are sexually

24

harassed more frequently than boys and that girls’ experiences tend to be more physical and intrusive than boys’ experiences.” Catherine Hill and Holly Kearl, Crossing The Line, Sexual

25 Harassment at School, American Association of University Women 2 (2011), https://www.aauw.org/files/2013/02/Crossing-the-Line-Sexual-Harassment-at-School.pdf.

26 4 The White House, supra note 3 at 9.

27

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41. While sexual harassment on college campuses is more widely known, students of all ages 1 2 face sexual harassment, including sexual assault. A nationally representative survey of students

3 in grades 7-12 in 2011 concluded that nearly half of the students surveyed experienced some

4 form of sexual harassment that school year, and the majority said that the experience had a
5 negative effect on them.5 Of these students, “[g]irls were more likely than boys to be sexually 6
harassed, by a significant margin.”6 Children who experience sexual violence are nearly 14 times 7
more likely to experience rape or attempted rape in their first year of college, according to the 8 9 National Center for Victims of Crime.7
10 42. Experiences of sexual violence harm students physically, psychologically, and

11 academically. Research shows that the effects of sexual assault in high school has consequences

12 that are “delayed and long lasting.”8 Sexually victimized students are more likely to drop classes, 13

14

15

16

17

18

19

20 5 Hill and Kearl, supra note 3 at 2.

21 6 Id.

22 7 Mark Keierleber, The Younger Victims of Sexual Violence in School, The Atlantic, Aug. 10, 2017, https://www.theatlantic.com/education/archive/2017/08/the-younger-victims-of-sexual-
23 violence-in-school/536418/.

24 8 Dana Bolger, Gender Violence Costs: School’s Financial Obligations Under Title IX, 125 Yale

L. J. 2106, 2118 (May 2016), https://www.yalelawjournal.org/feature/gender-violence-costs-

25 schools-financial-obligations-under-title-ix#_ftnref72 (“Violence—and institutional indifference

26

in its wake—changes the courses of survivors’ lives, with educational and employment consequences following them far into the future.”).

27

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change residences, and have lower GPAs, creating long-term consequences for professional 1 2 success and earning potential.9

3 43. Incidents of sexual harassment, including sexual violence, are often underreported,

4 especially on college campuses. For example, the Campus Climate Survey Validation Study

5 found that only 7 percent of students who indicated that they had been raped reported the rape to
6 school authorities.10
7 44. If unreported or inappropriately addressed, sexual harassment can continue unchecked
8
9 and create ongoing hostile environments for those who are the targets of such attacks.

10

Title IX of the Education Amendments of 1972

11 45. Signed into law by President Nixon, Title IX of the Education Amendments of 1972, 20

12 U.S.C. § 1681, prohibits discrimination on the basis of sex in any federally funded education
13 program or activity. When a recipient institution fails to comply with Title IX or to take action to
14 remedy its non-compliance, it can be subject to a range of enforcement actions, including the
15 loss of federal financial assistance. 20 U.S.C. § 1682.
16

17

18

19

20

21 9 Victoria L. Banyard et al., Academic Correlates of Unwanted Sexual Contact, Intercourse, Stalking, and Intimate Partner Violence: An Understudied but Important Consequence for

22 College Students, J. of Interpersonal Violence (June 21, 2017),

http://journals.sagepub.com/doi/10.1177/0886260517715022; National Women’s Law Center, 23 Let Her Learn: Stopping School Pushout for Girls Who Have Suffered Harassment and Sexual

24

Violence 8 (2017), https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wpcontent/uploads/2017/04/final_nwlc_Gates_HarassmentViolence.pdf (finding that 43 percent of

25 girls who are survivors of sexual violence missed 15 days or more of school, compared to 25 percent of girls overall).

26 10 The White House, supra note 3 at 10.

27

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46. The Supreme Court has squarely held that sexual harassment, which includes sexual 1 2 violence, is a form of sex discrimination that Title IX requires schools to address and

3 remediate.11

4

The Department of Education’s Implementation and Enforcement of Title IX

5 47. The U.S. Department of Education is the lead agency charged with enforcing Title IX. It
6 may do so by establishing rules, regulations, and procedures that implement Title IX and define
7 the ways in which educational institutions comply with Title IX’s requirements. See 20 U.S.C.
8
9 § 1682.

10 48. In 1975, the Department’s predecessor promulgated regulations to effectuate Title IX.

11 See 40 Fed. Reg. 24,128 (June 4, 1975). As amended, those regulations remain in effect today

12 and apply to educational institutions that receive federal financial assistance. See 34 C.F.R. pt.
13 106. Among other things, the regulations incorporate Title IX’s nondiscrimination mandate, see 14
id. § 106.31(a), and identify specific actions that constitute discrimination, see id. § 106.31(b). 15
49. Recipients found to have discriminated on the basis of sex must “take such remedial 16
17 action as the Assistant Secretary [for Civil Rights] deems necessary to overcome the effects of

18 such discrimination.” Id. § 106.3(a).

19 50. The regulations require that recipients “adopt and publish grievance procedures providing

20 for prompt and equitable resolution” of student and employee complaints of sexual
21 discrimination, including sexual assault and other forms of sexual harassment. Id. § 106.8(b).
22 Such grievance procedures are designed to facilitate the reporting and resolution of complaints of
23
such sex discrimination so as to prevent and remedy hostile environments on campus. 24

25

26

11 See, e.g., Franklin v. Gwinnett Cnty Public Schools, 503 U.S. 60, 75 (1992) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986); Davis v. Monroe Cnty. Bd. of Educ., 526 U.S.

27 629 (1999); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998).

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51. These same regulations require that educational institutions “designate at least one 1 2 employee”—commonly known as a Title IX coordinator—“to coordinate its efforts to comply

3 with and carry out its responsibilities” under Title IX, including any investigation of any

4 complaint of sexual discrimination, including sexual violence and other forms of sexual
5 harassment. Id. § 106.8(a). 6
52. The regulations further require that applicants for and recipients of federal financial 7
assistance sign assurances, see id. § 106.4(a), in which they commit to complying with all rules, 8 9 regulations, guidelines, policies, and standards related to Title IX issued by the Department.
10 There are at least two assurances that recipients of Department financial assistance may sign to

11 meet that requirement.

12 53. The Department’s Assurance provides, in pertinent part:

13

The applicant provides this assurance for the purpose of obtaining

14

Federal grants, loans, contracts (except contracts of insurance of

guaranty), property, discounts, funds made available through the

15

U.S. Department of Education, or other Federal financial

assistance from the Department. This assurance applies to all

16

Federal financial assistance from or funds made available through

17

the Department, including any that the applicant may seek in the future.12

18 Applicants agree that they “must comply” with Title IX, as well as “[a]ll regulations, guidelines,
19

and standards issued by the Department” under Title IX “in order to continue receiving Federal 20

21 financial assistance from the Department.”13 The Assurance specifies that it “is binding on the

22

23

24

25 12 U.S. Dep’t of Educ., Off. for C.R., Assurances of Compliance,
26 https://www2.ed.gov/about/offices/list/ocr/letters/boy-scouts-assurance-form.pdf. 13 Id.
27

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applicant” and that, if the applicant fails to comply, “financial assistance can be terminated and 1 2 the applicant can be declared ineligible to receive further assistance.”14

3 54. The Department’s Revised Assurances Template for a consolidated State plan

4 incorporates the Office of Management and Budget’s (OMB’s) Standard Form 424B, Assurances
5 for Non-Construction Programs.15 Recipients that sign this assurance form agree to comply with 6
Title IX, as well as with “all applicable requirements of all other Federal laws, executive orders, 7
regulations, and policies governing this program.”16 An applicant “certifies and assures 8 9 compliance with” that form “in order to receive Federal allocations” of funding.17 The Revised
10 Assurances Template that is posted on the Department’s website was in effect at the time the

11 challenged Title IX Policy was issued on September 22, 2017.18 Further, although that version

12 of the Revised Assurances Template lists an expiration date under the Paperwork Reduction Act 13 of September 30, 2017, the Department sought19 and received20 an “extension without change” 14

15

16 14 Id.

17 15 U.S. Dep’t of Educ., Revised Assurances Template 2 (May 2017), https://www2.ed.gov/admins/lead/account/stateplan17/reviseded18100576.pdf (“An authorized

18 representative of the SEA must sign the enclosed assurances and the standard forms attached in Appendix A …); id. at 5 (“The SEA certifies and assures compliance with the

19 following enclosed forms: 1) Assurances for Non-Construction Programs (SF 424B Form).”).

16 Id. at 6-7 ¶¶ 6, 18. 20 17 Id. at 5, 2 (last checkbox).

21

18 Id. at 1. 19 82 Fed. Reg. 34,291 (July 24, 2017) (“proposing an extension of an existing information

22 collection”), https://www.govinfo.gov/content/pkg/FR-2017-07-24/pdf/2017-15449.pdf;

Regulations.gov, https://www.regulations.gov/document?D=ED-2017-ICCD-0021-0522 (listing

23 forms, including Standard Form 424B, that were part of proposed extension).

20 See OMB, Information Collection Request – Office of Information and Regulatory Affairs, 24 Conclusion, https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201707-1810-001#

25 (“Conclusion Action” was “[a]pproved without change” with a new expiration date of “09/30/2020”); see also OMB, Documents for Information Collection (including Standard Form

26 424B as one of the documents included in the OMB approval),

https://www.reginfo.gov/public/do/PRAViewIC?ref_nbr=201707-1810-001&icID=21256.

27

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of the Revised Assurances Template until September 30, 2020. A recipient’s promise to comply 1 2 with the Assurance attached to the Revised Assurances Template is therefore still in effect.

3 55. In addition to promulgating Title IX’s implementing regulations, the Department has

4 issued a series of guidance documents that explain the obligations recipient schools and
5 universities are required to take under Title IX. In the recent past, the Department has used the 6
synonyms “guidance” and “guidelines” interchangeably in describing its Title IX policies.21 The 7
guidance document challenged here, the 2017 Title IX Policy, consists of “guidelines” and 8 9 “policies” that schools must comply with under the terms of the signed assurances. Furthermore,
10 as the Department declared when it announced the 2017 Title IX Policy, the new guidance

11 “explains the Department’s current expectations of schools.”22

12

The 1997 Sexual Harassment Guidance

13 56. The first of the Department’s guidance documents addressing educational institutions’
14 obligations to address sexual harassment, titled Sexual Harassment Guidance: Harassment of
15
Students by School Employees, Other Students, or Third Parties, was published in 1997 after a 16

17 public notice and comment period and “extensive consultation with interested parties, [including]

18 students, teachers, school administrators, and researchers.” See 61 Fed. Reg. 42,728 (Aug. 16,

19 1996); 61 Fed. Reg. 52,172 (Oct. 4, 1996); 62 Fed. Reg. 12,034, 12,035 (Mar. 13, 1997) (“1997

20 Guidance”). The 1997 Guidance provided information regarding the standards used by the
21 Department’s Office for Civil Rights (“OCR”) to investigate student complaints regarding
22

23
21 See Press Release, U.S. Dep’t of Educ., Guidance Issued on Responsibilities of Schools to 24 Address Sexual Violence, Other Forms of Sex Discrimination (Apr. 29, 2014),
25 https://www.ed.gov/news/press-releases/guidance-issued-responsibilities-schools-addresssexual-violence-other-forms-sex-discrimination.
26 22 Press Release, U.S. Dep’t of Educ., Department of Education Issues New Interim Guidance on Campus Sexual Misconduct (Sept. 22, 2017), https://www.ed.gov/news/press-
27 releases/department-education-issues-new-interim-guidance-campus-sexual-misconduct.

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educational institutions’ responses to sexual harassment perpetuated by school employees, other 1 2 students (peers), or third parties.

3 57. The 1997 Guidance set forth principles for how educational institutions should address

4 sexual harassment in the educational setting. It noted that schools “are required by the Title IX
5 regulations to adopt and publish grievance procedures providing for prompt and equitable 6
resolution of sex discrimination complaints, including complaints of sexual harassment, and to 7
disseminate a policy against sex discrimination.” 62 Fed. Reg. at 12,040. 8 9 58. With respect to “informal mechanisms” for resolving complaints, the 1997 Guidance
10 explained that they may be used by mutual consent of the parties but that it was inappropriate for

11 a complaining student to be required to work out the problem directly with the individual

12 accused of harassment and that mediation would be inappropriate even on a voluntary basis in

13 cases that involve sexual assault. Id. at 12,045.

14 59.
15

The 1997 Guidance further explained that, during an investigation of a complaint, a

school may take appropriate interim and remedial measures, such as placing the involved 16

17 students in separate classes or in different housing arrangements. The touchstone for these

18 measures was that they “be designed to minimize, as much as possible, the burden on the student

19 who was harassed.” Id. at 12,043.

20 60. The 1997 Guidance also made clear that, beyond temporary interim accommodations, a
21 school “may be required to provide . . . services to the student who was harassed if necessary to
22 address the effects of the harassment on that student.” Such service might include tutoring and
23
mental health counseling. Id. 24

25

26

27

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61. The 1997 Guidance set forth factors that OCR would consider in evaluating whether a 1 2 school’s grievance procedures were “prompt and equitable,” noting that “many schools …

3 provide an opportunity to appeal the findings or remedy or both.” Id. at 12,044.

4 62. The 1997 Guidance explained that other legal or adjudicatory processes could not
5 substitute for a school’s own processes. For example, where possible criminal conduct was 6
involved, a police investigation “may be useful in terms of fact-gathering,” but, “because legal 7
standards for criminal conduct are different, police investigations or reports may not be 8 9 determinative of whether harassment occurred under Title IX and do not relieve the school of its
10 duty to respond promptly.” Id. at 12,045.

11

The 2001 Revised Sexual Harassment Guidance

12 63. Following the Supreme Court’s 1998 decision in Gebser v. Lago Vista Indep. Sch. Dist.,
13 524 U.S. 274 (1998) and its 1999 decision in Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 14
(1999), the Department issued revisions to the 1997 Guidance in 2001, entitled Revised Sexual 15
Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third 16
17 Parties. See 66 Fed. Reg. 5512 (Jan. 19, 2001).

18 64. The 2001 Guidance, which also followed a public notice and comment period, see 62

19 Fed. Reg. 66,092 (Nov. 2, 2000), reaffirms many of the principles set forth in the 1997

20 Guidance. It “explains how the requirements of the Title IX regulations apply to situations
21 involving sexual harassment of a student and outlines measures that schools should take to
22 ensure compliance [with Title IX and its implementing regulations].” 2001 Guidance at 4.
23 24 65. The 2001 Guidance reaffirms the requirement that educational institutions publish
25 grievance procedures “providing for prompt and equitable resolution of sex discrimination

26

27

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complaints, including complaints of sexual harassment, and to disseminate a policy against sex 1 2 discrimination.” Id. at 14.
3 66. The 2001 Guidance further provides that “[o]nce a school has notice of possible sexual
4 harassment of students—whether carried out by employees, other students, or third parties—it
5 should take immediate and appropriate steps to investigate or otherwise determine what occurred 6
and take prompt and effective steps reasonably calculated to end any harassment, eliminate a 7
hostile environment if one has been created, and prevent harassment from occurring again.” Id. 8 9 at 15. 10 67. The 2001 Guidance specifies a number of factors that would be considered in
11 determining whether an educational institution’s grievance procedures were “prompt and
12 equitable,” as required by Title IX and the Department’s implementing regulations, including, as 13 in the 1997 Guidance, the acknowledgment that many schools “provid[ed] an opportunity to 14
appeal the findings or remedy or both.” Id. at 20. 15
68. The 2001 Guidance also reaffirms that although informal resolution of complaints might 16 17 be appropriate in some cases, OCR had “frequently advised schools” that “mediation” or other
18 informal resolution would not be appropriate in the context of some forms of sexual harassment,
19 such as sexual assault, even on a voluntary basis. Id. at 21.
20 69. The 2001 Guidance also reiterates the importance of interim measures discussed in the 21
1997 Guidance, stressing that such measures “should be designed to minimize, as much as 22
possible, the burden on the student who was harassed.” Id. at 16. 23
70. Like the 1997 Guidance, the 2001 Guidance made clear that, after an investigation has 24 25 concluded, a school “may be required to provide. . . services to the student who was harassed if
26 necessary to address the effects of the harassment on that student.” Id. at 16-17.
27
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71. The 2001 Guidance cautions schools, as did the 1997 Guidance, about relying on police 1 2 or insurance company investigations as a substitute for their own processes, again emphasizing

3 the different purposes and legal standards applicable in those third-party investigations. Id. at 21.

4 72. Finally, the 2001 Guidance notes that both employees and students of public schools and
5 universities are entitled to certain Constitutional due process protections, and that the rights 6
established under Title IX must be interpreted consistent with any federally guaranteed due 7
process rights involved in a complaint proceeding. The guidance instructed, however, that 8 9 recipients should ensure that “steps to accord due process rights do not restrict or unnecessarily
10 delay the protections provided by Title IX to the complainant.” Id. at 22.

11

The 2011 Dear Colleague Letter and 2014 Q&A Document

12 73. Even with the Department’s enforcement and guidance activities, sexual harassment,
13 including sexual violence, has remained a pervasive problem on campuses and in schools across 14
the country. 15
74. In the wake of these ongoing challenges, educational institutions solicited assistance from 16
17 the Department of Education in further understanding their obligations under Title IX in regard

18 to sexual harassment, particularly sexual violence. Thereafter, in 2011, the Department issued a

19 “Dear Colleague Letter on Sexual Violence” and, in 2014, a set of Questions and Answers to

20 respond to additional concerns raised by schools and students.23
21 75. Citing the “deeply troubling” statistics concerning sexual violence on campuses, the 2011
22 Dear Colleague Letter provided clarity on how schools should address peer-on-peer sexual
23

24

25 23 See U.S. Dep’t of Educ., Ltr. from Ass’t Sec’y Russlynn Ali (Apr. 4, 2011),

26

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf (“2011 Dear Colleague Letter”); U.S. Dep’t of Educ., Questions and Answers on Title IX and Sexual Violence (Apr. 29,

27 2014), https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (“2014 Q&A”).

28

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harassment, including sexual violence, as well as steps that schools could take to respond in 1 2 accordance with the Department’s regulations and 2001 Guidance.

3 76. The 2011 Dear Colleague Letter reiterated, consistent with the 2001 Guidance, the

4 importance of schools offering services to survivors, such as tutoring and mental health care, to
5 ensure that they can continue to learn in the wake of sexual harassment, including sexual 6
violence. 2011 Dear Colleague Letter at 15-17. It noted, again consistent with the 2001 7
Guidance, that necessary accommodations may include interim remedies to protect the 8 9 complainant during the investigation. Id. at 15.
10 77. As in the 2001 Guidance, the 2011 Dear Colleague Letter discussed what constitutes a

11 prompt and equitable adjudication. The 2011 Dear Colleague Letter also made clear that Title IX

12 requires schools to provide complainants and respondents equal rights and opportunities

13 throughout an investigation and any appellate process. Id. at 12.

14 78.
15

The 2011 Dear Colleague Letter also discouraged schools from allowing a complainant

and alleged perpetrator to directly cross-examine each other. As the guidance explained, 16

17 “[a]llowing an alleged perpetrator to question an alleged victim directly may be traumatic or

18 intimidating, thereby possibly escalating or perpetuating a hostile environment.” Id. at 12.

19 79. The 2011 Dear Colleague Letter reiterated the ongoing policy expressed in the 2001

20 Guidance that mediation is an inappropriate way to resolve sexual violence complaints. Id. at 8.
21 80. The 2011 Dear Colleague Letter also discussed, in response to questions that school
22 administrators had posed, the burden of proof that recipient schools should use in investigating
23 complaints of sexual assault. The 2011 Dear Colleague Letter explained that, in investigating
24
25 Title IX complaints, OCR reviews a school’s grievance procedures to determine whether a

26 school uses preponderance of the evidence as the complainant’s burden of proof. It explained

27

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that this burden appropriately reflected the burden used in litigation under Title VII of the Civil 1 2 Rights Act of 1964, to which courts have looked in construing Title IX, as well as the burden
3 used by OCR in investigating Title IX complaints against recipients of federal funding. Id. at 11.
4 81. Also consistent with the 2001 Guidance, the 2011 Dear Colleague Letter reiterated that
5 public and state-supported schools must provide due process protections to an alleged 6
perpetrator. Id. at 12. 7
82. In 2014, the Department issued further clarifications consistent with its previously issued 8 9 guidance in response to questions that it received from schools and colleges in the form of a 10 Questions and Answers document (“2014 Q&A”). The 2014 Q&A provided examples of
11 proactive efforts schools could take to prevent sexual violence and remedies schools could use to
12 end such conduct, prevent its recurrence, and address its effects. 13 83. Among other things, the 2014 Q&A further discussed Title IX’s mandate that schools 14
take steps to ensure equal access to educational programs and activities, including by protecting 15
a complainant with interim measures pending resolution of a complaint. Such measures should 16 17 allow the complainant to avoid contact with the alleged perpetrator and “to change academic and
18 extracurricular activities or his or her living, transportation, dining, and working situations as
19 appropriate.” 2014 Q&A at 32. This requirement is consistent with the 2001 Guidance’s
20 emphasis on Title IX’s mandate to take immediate steps once a complaint is filed to eliminate 21
any hostile environment and prevent harassment from occurring again. Id. at 32-33; see also 22
2001 Guidance at 12. 23
84. The 2014 Q&A also emphasized that schools should provide the same rights and 24 25 opportunities to complainants and respondents. 2014 Q&A at 26.
26
27
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85. The 2011 Dear Colleague Letter and the 2014 Q&A did not reflect any policy change, but 1 2 rather reminded schools of longstanding statutory and regulatory obligations to address sexual

3 harassment, including sexual violence, while providing more details and examples of how to do

4 so. Both documents were the product of the Department’s consideration of the standards that

5 OCR had relied on in dozens of investigations and reflected the input of students, faculty,

6 administrators, staff, attorneys, Sexual Assault Response Teams (“SARTs”), counselors, student
7 advocates, medical personnel, parents, law enforcement, prosecutors, and campus police.
8

9

The Trump Administration’s Change in Title IX Policy

10 86. Following his inauguration, President Trump appointed Secretary DeVos to lead the

11 Department of Education. In April 2017, Secretary DeVos selected Candice Jackson to serve as

12 Deputy Assistant Secretary and to lead OCR as Acting Assistant Secretary for Civil Rights.
13 87. Secretary DeVos and Ms. Jackson have repeatedly criticized the protections that Title IX 14
affords to women and other survivors of sexual harassment, including sexual violence. Much of 15
that criticism has been based on discriminatory stereotypes and unfounded generalizations about 16
17 female students in general and female victims of sexual violence in particular. There is a

18 longstanding and inaccurate stereotype that women and girls tend to lie about or misunderstand

19 sexual assault and harassment. For example, a recent study published in the Psychology of

20 Violence determined that police routinely rely on rape myths, such as that the victim was lying
21 or that the victim had given consent, in judging whether a case should be referred to a
22 prosecutor.24 Secretary DeVos and Ms. Jackson’s statements and actions reveal that their
23

24
25 24 See Romeo Vitelli, Rape Myths and the Search for True Justice, Psychology Today, Oct. 26, 2017, https://www.psychologytoday.com/us/blog/media-spotlight/201710/rape-myths-and-the-
26 search-true-justice (citing and linking to Psychology of Violence study, Jessica Shaw, et al., Beyond Surveys and Scales: How Rape Myths Manifest in Sexual Assault Police Records, 7(4)
27

28

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decision-making regarding the 2017 Title IX Policy was motivated at least in part by these 1 2 stereotypes.

3 88. For example, Ms. Jackson has repeatedly criticized core civil rights achievements, such

4 as legal protections against sexual harassment. In a book she published in 2005, Ms. Jackson

5 stated that laws to combat sexual harassment gloss over “the reality that unwanted sexual
6 advances are difficult to define.”25
7 89. Ms. Jackson regularly questions the veracity of sexual harassment and assault claims
8
9 made by women, stating, for example:

10 11 12 13 14 15
90. 16

[I]t wasn’t enough that women are not legally forbidden anymore from getting an education and entering the workforce. Feminists and other leftists thought the problem of workplace sexual harassment needed a legal remedy. Since sexual harassment is such a nebulous experience, defined so subjectively and turning on the perceptions of the people involved, laws banning it are difficult to articulate. But they have tried anyway, with the side result that many men self-censor themselves to avoid being accused of sexual harassment, and institutions remove valid expressions of art and learning to avoid “even the appearance of sexual harassment.”26
In October 2016, a few months before joining the Department, Ms. Jackson stated in a

17 social media post that women who claimed that Donald Trump sexually harassed them were

18 lying “for political gain,” and “evidence is piling up that shows these recent accusers against

19

20

21 Psychology of Violence 602 (Oct. 2017)); Critical Issues on Violence Against Women:

22

International Perspectives and Promising Strategies 96 (Holly Johnson, et al., eds., Routledge 2015), available at

23 https://books.google.com/books?id=pD62BQAAQBAJ&pg=PA96#v=onepage&q&f=false (“Allegations that women lie about sexual assault are not new. … Despite social advancements

24 in the past several decades regarding rape awareness, negative attitudes and belief in ‘rape

myths’ are still pervasive.”). 25
25 Candice Jackson, Their Lives: The Women Targeted by the Clinton Machine (2005), at 138.

26 26 Id.

27

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Trump are, frankly, fake victims.27 Ms. Jackson’s post came just days after a tape surfaced of 1 2 then-candidate Trump expressly bragging about sexually assaulting women.

3 91. Similarly, and for example, in the past, Secretary DeVos has provided substantial

4 financial contributions—a form of speech—to FIRE, an organization that advocates for schools
5 to abdicate their responsibility to address sexual violence and instead defer entirely to law 6
enforcement.28 FIRE asserts that the 2011 Dear Colleague Letter “eviscerated due process rights 7
of students and faculty accused of sexual misconduct on campus.”29 FIRE has previously 8 9 litigated against the Department to weaken Title IX’s protections, including by arguing that the
10 preponderance of the evidence standard, which is used in nearly all civil matters, is unfair to the

11 alleged perpetrator in a Title IX grievance proceeding.

12

13

14

15 27 Tyler Kingkade, The Lawyer Who Helped Bill Clinton’s Rape Accusers May Have Scored A Top Civil Rights Job Under Trump, BuzzFeed News, Apr. 3, 2017,

16 https://www.buzzfeednews.com/article/tylerkingkade/the-lawyer-who-helped-clinton-rape-

accusers-may-have-scored#.ej6ZKYBG8X; see also Annie Waldman, DeVos Pick to Head Civil 17 Rights Office Once Said She Faced Discrimination for Being White, Pro Publica, Apr. 14, 2017,

18

https://www.propublica.org/article/devos-candice-jackson-civil-rights-office-educationdepartment.

19 28 Benjamin Wermund, DeVos’ Donations Spark Questions About Her Stance On Sexual Assault,

20

Politico, Jan. 9, 2017, https://www.politico.com/story/2017/01/betsy-devos-education-sexualassault-233376; Alex Morey, Baylor Rape Controversy More Evidence Colleges Unequipped to

21 Decide Sexual Assault Cases, Found. for Individual Rights in Educ. (“FIRE”) (Sept. 14, 2015), https://www.thefire.org/baylor-rape-controversy-more-evidence-colleges-unequipped-to-decide-

22 sexual-assault-cases/.; Robert Shibley, Time to Call the Cops: Title IX Has Failed Campus

Sexual Assault, TIME, Dec. 1, 2014, http://time.com/3612667/campus-sexual-assault-uva-rape23 titleix/ (FIRE’s senior vice president arguing that campus responses “encourage[ ] silence or the

24

avoidance of law enforcement” in the wake of the Rolling Stone account of alleged rape at a fraternity house at the University of Virginia).

25 29 Dear Colleague: It’s Over! Education Department Rescinds Controversial 2011 Letter, FIRE,

26

Sept. 22, 2017, https://www.thefire.org/dear-colleague-its-over-education-department-rescindscontroversial-2011-letter/.

27

28

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92. Since they assumed roles at the Department, Secretary DeVos’s and Ms. Jackson’s 1 2 official actions and statements preceding the 2017 Title IX Policy reveal their discriminatory

3 motivation.

4 93. For example, Secretary DeVos actively solicited the views of those individuals and
5 groups that oppose robust Title IX protections and have questioned the veracity of survivors’ 6
experiences. Shortly after assuming her role as Secretary, Secretary DeVos met with State 7
Representative Earl Ehrhart from Georgia—a notorious opponent of Title IX—to discuss, among 8 9 other topics, Title IX enforcement.30 Representative Ehrhart has pushed a state bill that would
10 require colleges to refer all sexual assault reports to the police, even against a victim’s expressed

11 wishes, a dangerous policy that would discourage reporting by victims. He has also questioned

12 women’s credibility on the experience of sexual assault, accusing one woman of “utilizing a
13 victim’s status” for ulterior motives.31 Similarly, during the summer of 2017, Secretary DeVos
14 met with the National Coalition for Men, an organization that has published photos of women
15 who have made complaints of rape, calling them “false victims.”32 This Coalition has referred to
16
17 rape survivors as “anti-male.” 33

18 30 Kathryn Joyce, The Takedown of Title IX, N.Y. Times, Dec. 5, 2017,
19 https://www.nytimes.com/2017/12/05/magazine/the-takedown-of-title-ix.html?_r=0 (“Ehrhart 20 came away from his meeting gratified that DeVos seemed to agree with him on the limited role
that federal authorities should play. ‘She’s placing this back where it belongs,’ he told me, ‘in the 21 purview of the states.’”)

22 31 Letter from Nat’l Women’s Law Ctr, et al. to Elisbeth DeVos, Sec’y of Educ., Apr. 17, 2017, https://nwlc.org/wp-content/uploads/2017/04/April-17-2017-Letter-to-Secretary-DeVos.pdf.

23 32 Jessica Valenti, Why is Betsy DeVos Enabling Rape Deniers?, The Guardian, July 14, 2017,

24

https://www.theguardian.com/commentisfree/2017/jul/14/betsy-devos-accused-rapists-meetingssexual-assault.

25 33 Tyler Kingkade, These Democratic Senators Are Blasting Betsy DeVos For Her Approach To

26

Campus Rape, Buzzfeed, July 12, 2017, https://www.buzzfeed.com/tylerkingkade/thesedemocratic-senators-are-blasting-betsy-devos-for-her?utm_term=.sd2GyLb3M#.lvOz57wgB.

27

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94. Similarly, Candice Jackson proactively sought out the views and input of those 1 2 individuals who question the veracity of women and girl’s reports of sexual harassment and

3 assault, as the Defendants developed the new Policy. According to documents released by the

4 Department in response to a Freedom of Information Act request, she had a dinner meeting with
5 Chris Perry, Deputy Executive Director of Stop Abusive and Violent Environments (“SAVE”), 6
and others in advance of the release of the 2017 Title IX Policy to discuss the Dear Colleague 7
Letter. SAVE’s mission includes stopping “false accusations” of sexual assault, and its website 8 9 repeats a discredited and aberrational study that concluded that 41% of rape claims are false.34
10 95. FOIA records also show that in May 2017, Ms. Jackson telephoned Gordon E. Finley

11 regarding his writing on issues related to sexual assault. Mr. Finley is a member of the National

12 Coalition for Men and a professor at Florida International University who opines frequently on
13 sexual harassment and assault, including essays such as “Sex: The New War on Men,”35 and “A 14
false accusation can spell the end of a college male’s future,” which relies on studies that assert 15
(incorrectly) that rates of false allegations regarding rape and other sexual abuse range from 41 16
17 to 62 percent. 36 In an email response, after thanking Ms. Jackson for her “kind call” and saying

18

19 34 SAVE, Falsely Accused of Sexual Assault, http://www.saveservices.org/dv/falsely-

20

accused/sex-assault/; see SAVE, Ten Myths of Campus Sexual Assault, http://www.saveservices.org/sexual-assault/ten-myths/.

21 35 Gordon E. Finley, Sex: The New War on Men, Nat’l Coal. for Men, May 12, 2014,
https://ncfm.org/2014/05/action/ncfm-advisor-gordon-finley-ph-d-sex-the-new-war-on-men/ 22 (“Sexual allegations made by females are not taken as allegations but rather as ‘settled fact.’
23 These claims do not even consider the possibility that women might lie about any manner of things sexual …” and “The former definition of forcible rape has morphed into anything sexual
24 without “consent” and with the determination of “consent” left entirely up to the woman, even to be determined on the morning after.”).
25 36 See NCFM Adviser Gordon Finley Letter, “A False Accusation Can Spell the End of College
26 Male’s Future,” Published in the Boston Globe, Nat’l Coal. for Men, Oct. 18, 2014, https://ncfm.org/2014/10/news/discrimination-news/discrimination-against-men-news/ncfm-
27

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“[i]t’s always nice to know that someone actually reads what you write,” Mr. Finley directed Ms. 1 2 Jackson to additional of his writings, including the two previously identified.

3 96. Ms. Jackson was also in regular email contact with Cynthia Garrett, co-President of

4 Families Advocating for Campus Equality (“FACE”), and others at FACE, regarding the
5 Department’s Title IX Policy. FACE, which is comprised primarily of mothers of boys and men 6
who have been accused of sexual harassment and assault, “advocate[es] for the rights of falsely 7
accused students.”37 One of these FACE members told the New York Times of her son’s 8 9 expulsion for having sex with a student who was too intoxicated to give consent, “[i]n my
10 generation, what these girls are going through was never considered assault … It was considered,

11 ‘I was stupid and I got embarrassed.’”38

12 97. Ms. Jackson coordinated with Ms. Garrett regarding a letter campaign from FACE
13 members to the Department regarding the Department’s Title IX sexual violence policy. By and 14
large, these letters presented stories of supposedly false accusations of sexual assault or 15
harassment by women or girls against boys and men. Ms. Jackson also requested that FACE 16
17 publish numerous op-eds regarding the Department’s Title IX Policy in advance of Secretary

18 DeVos’s September 2017 speech on the Department’s Title IX Policy.

19 98. In contrast to the Department’s solicitation of persons and organizations with views that

20 female sexual assault survivors are prone to exaggerate or fabricate accusations, the Department 21

22

23 adviser-gordon-finley-letter-a-false-accusation-can-spell-the-end-of-college-males-futurepublished-in-the-boston-globe/.
24 37 FACE, Title IX’s Other Victims, https://www.facecampusequality.org/ourstories/.

25 38 Anemona Hortocollis & Christina Capecchi, ‘Willing to Do Everything,’ Mothers Defend Sons

26

Accused of Sexual Assault, N.Y. Times, Oct. 22, 2017, https://www.nytimes.com/2017/10/22/us/campus-sex-assault-mothers.html.

27

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met with organizations that advocate for Title IX’s protections for survivors only after repeated, 1 2 collective requests from those organizations. Plaintiffs, along with other organizations that

3 advocate for Title IX’s protections for sexual assault survivors, sent Secretary DeVos a letter in

4 April 2017 urging her to consider the views of sexual assault survivors and groups dedicated to
5 survivors’ rights, as opposed to the biased and extreme views held by Mr. Ehrhart and others.39 6
While Department decisionmakers did eventually meet with SurvJustice and others representing 7
the views of sexual violence survivors, one survivors’ rights group, Know Your IX, was 8 9 disinvited after its co-founders published an op-ed critical of the Office for Civil Rights.
10 99. The views of individuals arguing that women tend to lie about sexual harassment and

11 assault, especially in educational settings, influenced and infected the Department’s decision-

12 making. For example, FOIA records show that on July 18, 2017, Candice Jackson discussed a
13 book titled “Unwanted Advances: If this is feminism, it’s feminism hijacked by melodrama” 14
with OCR staff and remarked on “how helpful it has been in reference to the issues we are 15
discussing.” In an email to Department colleagues attaching a summary of the book and 16
17 referencing Ms. Jackson’s favorable view of it, OCR’s Confidential Assistant instructed the

18 group, “[i]t is imperative that we all read either the summary or the book … before tomorrow’s

19 meeting.” The attached book summary included the following statements:

20

The existing Title IX guidance from the Department was motivated by “an ill-

21

conceived effort to protect women students from a rapidly growing catalogue of

sexual bogeymen.”

22 “Sexual paranoia has converted the Title IX bureaucracy into an insatiable

23

behemoth, bloated by its own federal power grab, though protests are few

because—what are you, in favor of rape culture or something?” 24

25

26 27 39 Letter from Nat’l Women’s Law Ctr, et al., supra note 20.

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“It turns out that rampant accusation is the new norm on today’s campus; the

1

place is a secret cornucopia of accusation, especially when it comes to sex.”

2

“[W]e seem to be breeding a generation of students, mostly female students,

3

deploying Title IX to remedy sexual ambivalences or awkward sexual

experiences, and to adjudicate relationship disputes post-breakup—and campus

4

administrators are allowing it.”

5

“[A]ny number of other cases I learned about: astounding levels of bias against

6

accused men, inventive deployments of the preponderance standard, and female complainants with ambiguous motives. I don’t wish to betray my gender, but the

7

premise that accusers don’t lie turns out to be mythical. By sentimentalizing

women in such preposterous ways, aren’t Title IX officials setting schools up as

8

cash cows for some of our more creatively inclined women students?”

9 100. Although Title IX affords protections to all victims of discriminatory conduct on the
10 basis of sex, Secretary DeVos and Ms. Jackson have criticized the protections that civil rights 11
laws, such as Title IX, afford to women, continuing to base their statements on stereotypes about 12
college women and women who are survivors of sexual harassment, including sexual assault, as 13
14 fabricators and exaggerators.

15 101. In a July 2017 article in the New York Times, in which Ms. Jackson was quoted, she

16 publicly propounded discriminatory stereotypes of women who survive sexual assault.

17 Regarding investigations conducted by schools and universities to identify and remedy unlawful

18 sexual violence and other forms of harassment, she echoed many of the views expressed by

19 groups and individuals from whom she sought input:
20

[In most investigations there’s] not even an accusation that these accused students

21

overrode the will of a young woman. Rather, the accusations—90 percent of

22

them—fall into the category of ‘we were both drunk,’ ‘we broke up, and six

months later I found myself under a Title IX investigation because she just

23

decided that our last sleeping together was not quite right.’40

24

25 40 Erica L. Green & Sheryl Gay Stolberg, Policies Get a New Look as the Accused Get DeVos’s

26

Ear, N.Y. Times, July 13, 2017 (emphasis added), https://www.nytimes.com/2017/07/12/us/politics/campus-rape-betsy-devos-title-iv-education-

27 trump-candice-jackson.html.

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102. In September 2017, Secretary DeVos gave a speech on campus sexual harassment, 1 2 including sexual violence, at George Mason University. In her remarks, she cited a number of

3 examples where students, particularly male students accused of sexual violence, were allegedly

4 treated unfairly by their schools. She used these examples to justify rescinding the 2011 Dear
5 Colleague Letter and 2014 Q&A.41 Yet these anecdotes involve problems that arose because 6
schools did not follow the then-existing guidance, and therefore do not support rescission of that 7
guidance. Moreover, many of the anecdotes used by Secretary DeVos in her speech were 8 9 misleading and/or untrue, in that they recounted supposed facts that the parties to the incident
10 disputed.

11 103. Secretary DeVos’s September 2017 speech presented as equally problematic the harm

12 faced by sexual violence survivors and the harm faced by individuals who have been falsely
13 accused, despite a lack of evidence that the latter is a widespread problem extending beyond a 14
few occurrences, unlike the former.42 Rather than recognizing that false accusations are rare, 15
Secretary DeVos presented the problem of false accusations as rampant. On the contrary, 16 17 research shows that the prevalence of false allegations of sexual assault is very low—false
18 accusations regarding criminal sexual assault, for example, are estimated at 2-10 percent.43

19 104. Secretary DeVos also asserted that the loss of due process protections for alleged

20 perpetrators is a widespread problem on school campuses, mentioning “due process” ten times 21

22 41 See Elisabeth DeVos, Sec’y of the U.S. Dep’t of Educ., Remarks on Title IX Enforcement at
23 George Mason University (Sept. 7, 2017), https://www.ed.gov/news/speeches/secretary-devosprepared-remarks-title-ix-enforcement (“DeVos Remarks”).
24 42 See DeVos Remarks.

25 43 David Lisak, et al., False Allegations of Sexual Assault: An Analysis of Ten Years of Reported

26

Cases, 16(12) Violence Against Women 1318, 1330 (2010), https://icdv.idaho.gov/ conference/handouts/False-Allegations.pdf.

27

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during the speech. She also claimed that “the system established by the prior administration” was 1 2 responsible for creating “victims of a lack of due process”.44
3 105. Secretary DeVos also expressed doubt about the seriousness of sexual harassment claims,
4 saying, “[I]f everything is harassment, then nothing is.”45 This statement, among other things,
5 minimizes the full range of sexual harassment and its impact on women and girls, including 6
deprivation of their access to education. 7
106. Secretary DeVos’s and Ms. Jackson’s statements are consistent with and reveal their 8 9 discriminatory belief, based on gender stereotypes, that many girls and women who report sexual
10 harassment misunderstood a harmless romantic advance and that those who report sexual
11 violence often are either lying or have regret about a consensual sexual encounter.
12 107. Other politically appointed Department of Education officials have similar doubts about 13 the veracity of sexual harassment and violence claims. For example, Adam Kissel, previously 14
Deputy Assistant Secretary for Higher Education Programs, has criticized affirmative consent 15
policies adopted on college campuses through his Twitter accounting, stating in February 2017 16 17 that “[t]he new OCR [Office of Civil Rights, Department of Education] will start to fix this.”
18 Mr. Kissel has also criticized the “preponderance of evidence” standard because it will lead, in
19 his view, to “more guilty verdicts,” apparently referring to campus findings of responsibility. He
20 has also criticized antidiscrimination policies preventing sexual harassment. 21
108. This discriminatory mindset not only has motivated decisionmakers at the Department; it 22
flows from the top of the Executive Branch. President Trump’s actions and statements reveal his 23
discriminatory and stereotyped views of women, and particularly women’s veracity regarding 24
25
26 44 DeVos Remarks. 27 45 DeVos Remarks.
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claims of sexual harassment, including violence. For example, during his campaign for President, 1 2 Donald Trump called women who have made accusations of sexual harassment and assault

3 against him “phony accusers” who have made such reports to get “some free fame.” He has

4 called sexual harassment reports against him by women “a total setup” and the women who
5 made those reports, “horrible.”46 6
109. Mr. Trump has bragged about sexually assaulting women on audiotape, but continues to 7
deny the experiences of women and girls who have experienced sexual assault. He asserted that 8 9 “every woman lied when they came forward…” regarding alleged sexual harassment by him, and
10 that all of the women “liars will be sued after the election is over.” 47

11 110. This discriminatory and stereotyped view of women and girls has become de facto White

12 House policy, as the White House has asserted in an official statement that at least 16 women
13 who had accused the President of sexual harassment were lying.48 14
111. The Administration’s disbelief of women and girls and disregard for gender-based 15
violence is also evident from the employment of multiple White House staff members who have 16
17 been accused of abusing their female partners. It has been widely reported that now-former

18 White House staff secretary Rob Porter was elevated within the White House despite law

19

20

21 46 Ryan T. Beckwith, Read Donald Trump’s Speech Attacking His Accusers, TIME, Oct. 14,

22 2016, http://time.com/4532181/donald-trump-north-carolina-accusers-speech-transcript/.

47 Ben Jacobs, Trump Uses Gettysburg Address to Threaten to Sue Sex Assault Accusers, The 23 Guardian, Oct. 22, 2016, https://www.theguardian.com/us-news/2016/oct/22/donald-trump-

24 gettysburg-contract-with-america-sue-accusers-hillary-clinton. 48 John Wagner, All of the Women Who Have Accused Trump of Sexual Harassment Are Lying,
25 the White House Says, Wash. Post, Oct. 27, 2017, https://www.washingtonpost.com/news/post-

26

politics/wp/2017/10/27/all-of-the-women-who-have-accused-trump-of-sexual-harassment-arelying-the-white-house-says/?utm_term=.79b67a7a3a2b.

27

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enforcement investigations concerning multiple reports of his abuse of women.49 After the 1 2 reports of Mr. Porter’s abuse were made public, President Trump has defended Mr. Porter, and

3 White House Chief of Staff John Kelly stated that Mr. Porter is a man of “integrity.” Mr. Porter’s

4 resignation was followed by the resignation of another senior White House official, David
5 Sorensen, who also has been accused of gender-based violence. 6
112. Following these resignations, President Trump issued a statement in the form of a 7
tweet: “Peoples [sic] lives are being shattered and destroyed by a mere allegation,” he wrote. 8 9 “There is no recovery for someone falsely accused—life and career are gone. Is there no
10 such thing any longer as Due Process?”50

11 113. More recently, President Trump mocked Christine Blasey Ford, who accused now-Justice

12 Brett Kavanaugh of sexual assault. In a speech in Mississippi, Trump questioned Dr. Ford’s
13 recollection of the incident, which she reports occurred several decades ago. Later, the President
14 confirmed that he doubted Dr. Ford’s report of sexual assault, saying “I was just saying she
15 didn’t seem to know anything.”51
16

17

18

19

20 49 Mr. Porter’s reported abuse of women is well documented; in 2010, a court issued a protective
21 order against him, finding “reasonable grounds” to believe that Mr. Porter committed domestic

22

abuse towards his wife at the time, Jennifer Willoughby, and “probable danger” of the abuse occurring. Reports and evidence concerning Mr. Porter’s abuse of women are among the things

23 that prevented Mr. Porter from obtaining a permanent security clearance.

24

50 Donald Trump (@realDonaldTrump), Twitter (Feb. 10, 2018), https://twitter.com/ realDonaldTrump/status/962348831789797381.

25 51 Alex Johnson, Trump Defends Mockery of Christine Blasey Ford, Says It Got Kavanaugh

26

Confirmed, NBC News, Oct. 15, 2018, https://www.nbcnews.com/politics/donald-trump/trumpdefends-mockery-christine-blasey-ford-says-it-got-kavanaugh-n919986.

27

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114. President Trump also claimed that two women who confronted Senator Jeff Flake in an 1 2 elevator with stories of their own sexual assaults during now-Justice Kavanaugh’s confirmation 3 hearings were “paid professionals.”52

4 115. On October 2, 2018, President Trump again addressed Dr. Ford’s allegations that now-
5 Justice Kavanaugh sexually assaulted her, calling it “a very scary time for young men in 6
America.” He added that “[w]omen are doing great.”53 7
116. The Trump Administration’s animus towards women gives license to and encourages 8 9 Executive branch decisionmakers who share the same discriminatory views to perpetuate those
10 views in their work.

11 117. The Department’s revised Title IX Policy, described in detail in the paragraphs that

12 follow, was motivated by discriminatory and unfounded stereotypes about the women and girls
13 who come forward to report sexual assault and harassment. Consistent with this view, the new 14
policy removes protections for survivors, the majority of whom are female, and does so in order 15
to make it more difficult for these women and girls to obtain relief via a school’s Title IX process 16
17 and to discourage them from making Title IX reports to their schools in the first place.

18

2017 Title IX Policy

19 118. On September 22, 2017, the Department issued a new Dear Colleague Letter (“2017 Dear

20 Colleague Letter”), rescinding the 2011 Dear Colleague Letter and 2014 Q&A.54 The 2017 Dear 21

22
23 52 Donald Trump (@realDonaldTrump), Twitter (Oct. 5, 2018), https://twitter.com/realDonaldTrump/status/1048196883464818688.
24 53 Luke Barnes, Trump Says It’s A ‘Very Scary Time for Young Men’, ThinkProgress, Oct. 2, 25 2018, https://thinkprogress.org/trump-kavanaugh-very-scary-time-for-young-men-in-america-
e8ed567bc365/. 26 54 See 2017 Dear Colleague Letter.
27

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Colleague Letter also provides new information about how the Department will assess an 1 2 educational institution’s compliance with Title IX through a set of Questions and Answers.55

3 Together, these documents set forth the Department’s revised Title IX Policy (“2017 Title IX

4 Policy”). This Policy is made binding on recipients of federal funding through the assurances.
5 119. The 2017 Title IX Policy departs dramatically from the 2011 and 2014 guidance 6
documents. The 2017 Title IX Policy does not simply rescind the 2011 Dear Colleague Letter 7
and 2014 Q&A. Instead, it affirmatively contradicts Department policies that the 2017 Title IX 8 9 Policy supposedly kept in effect, including the 2001 Guidance.
10 120. The 2017 Title IX Policy, among other changes from existing law, imposes the following

11 requirements on schools that weaken protections for sexual harassment survivors:

12

x

prohibits educational institutions from issuing interim measures that benefit

13 complainants by minimizing the burden on these students, such as modifications to their work
14 and class schedules or to housing assignments, thereby increasing the risk that survivors of
15
sexual harassment are isolated from their support networks in the aftermath of their experience, 16

17 see 2017 Q&A at 3;

18

x

requires educational institutions issuing interim measures to provide such

19 measures to both parties or not at all, thereby burdening survivors and increasing the risk that
20 survivors of sexual harassment are isolated from their support networks in the aftermath of their 21
experience and impeded in their ongoing access to educational benefits and opportunities, see 22
id.; 23

24

25

26 27 55 See 2017 Q&A.

28

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1

x

requires educational institutions to consider the impact of disciplinary sanctions

2 on a perpetrator’s access to education, even after finding the individual responsible for sexual

3 harassment or violence and without regard to the survivor’s access to education, id. at 6;

4

x

eliminates the requirement that educational institutions consider the effect of off-

5 campus conduct that does not involve a program or activity of the institution in determining

6

whether there is a hostile environment, id. at 1, n. 3.

7

8

x

eliminates the requirement that educational institutions provide appellate rights to

9 both parties, if they are provided at all, and instead permits institutions to provide appellate rights

10 only to the alleged perpetrator, id. at 6-7;

11

x

permits educational institutions not to provide interim measures to protect victims

12 of sexual harassment, including sexual violence from further harassment or violence during the

13

investigation into their complaint, see at 2-3;

14

x

does not require educational institutions to timely resolve reports of sexual

15

16 harassment, including sexual violence, id. at 3;

17

x

permits educational institutions to resolve claims of sexual assault through

18 mediation if both parties consent, notwithstanding, among other concerns, the likelihood that

19 even mediation which is agreed to may retraumatize the victim, see id. at 4;56

20

x

permits educational institutions to use the “clear and convincing evidence” burden

21

of proof in adjudicating claims of sexual harassment, including sexual violence, rather than the 22

23 equitable standard of “preponderance of evidence,” id. at 5;

24

25 56 See also Anne Lawton, The Emperor’s New Clothes: How the Academy Deals with Sexual

26

Harassment, 11 Yale J.L. & Feminism 75, 130 (1999) (“[E]ven voluntary mediation can be coercive.”); Grace Watkins, Sexual Assault Survivor to Betsy DeVos: Mediation is Not a Viable

27 Resolution, TIME, Oct. 2, 2017, http://time.com/4957837/campussexual-assault-mediation/.

28

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1

x

eliminates the caution against educational institutions relying on criminal

2 investigations as a substitute for their own independent investigations and determinations

3 regarding complaints of sexual harassment, including sexual violence, cf. 2014 Q&A at 27;

4

x

eliminates the prohibition on permitting an alleged perpetrator to question a

5 complainant’s sexual history with individuals other than the alleged perpetrator, cf. id. at 31;

6

x

eliminates the prohibition on educational institutions treating a current or previous

7

8 consensual dating or sexual relationship between parties as implying consent or precluding a

9 filing of sexual violence, cf. id. at 31;

10

x

fails to provide instructions on how to respond when a complainant requests

11 confidentiality or requests that no investigation or disciplinary action be pursued, cf. id. at 18-22;

12 and

13

x

eliminates the strong discouragement to educational institutions from permitting

14

alleged perpetrators to directly cross-examine complainants to avoid the perpetuation of a hostile 15

16 environment, cf. id.

17 121. The 2017 Title IX Policy definitively changes expectations and mandates for recipient

18 institutions, including those outlined in the longstanding 2001 Guidance, which was the product

19 of notice and comment procedures (unlike the 2017 Title IX Policy) and remains in effect. For
20 example, the 2001 Guidance stated that in “alleged sexual violence, mediation will not be
21 appropriate even on a voluntary basis,” 2001 Guidance at 21, while the 2017 Title IX Policy
22 23 permits explicitly mediation in all cases where the parties consent. 2017 Q&A at 4.
24 122. The 2017 Title IX Policy also sets forth expectations and mandates on educational

25 institutions that are inconsistent with the statutory text of Title IX and its implementing

26 regulations, including, but not limited to, the following: providing for one-sided appellate rights 27

28

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favoring the accused; permitting schools to adopt a higher burden of proof—clear and 1 2 convincing evidence—for adjudicating complaints of sexual harassment, including sexual
3 violence; considering the impact that particular sanctions would have on a perpetrator’s access to
4 education after being found responsible for sexual harassment, including sexual violence, under
5 Title IX; and departing from prior policy requiring interim measures be issued to promptly 6
remedy the hostile environment for the complainant of sexual harassment. 7
123. In promulgating the 2017 Title IX Policy, Defendants failed to provide reasoned 8 9 justifications for the abrupt reversal in policy—and frequently failed to acknowledge the reversal 10 in policy.
11 124. In promulgating the 2017 Title IX Policy, Defendants relied on multiple errors of fact and
12 law, underscoring that the Department’s policy reversal is based not on reasoned justifications, 13 but on discriminatory views of women and girls who allege sexual harassment. Among these 14
errors, the 2017 Dear Colleague letter makes several claims about the effects of the rescinded 15
guidance, stating, for example, that it had “led to the deprivation of rights for many students— 16 17 both the accused students denied fair process and victims denied an adequate resolution of their
18 complaints.” 2017 Dear Colleague Letter at 1-2. On the contrary, the prior policy did not require
19 schools to limit due process or basic fairness protections for alleged perpetrators. While there are
20 anecdotes of schools making errors in providing these procedural protections, such errors were 21
neither required by, nor the result of, the 2011 and 2014 guidance documents. 22
125. The 2011 and 2014 guidance documents clarified the requirements that Title IX imposes 23
on educational institutions to respond to complaints of sexual harassment and the protections it 24 25 requires for complainants. As such, they empowered students to make complaints of sexual
26 harassment, including sexual violence through campus complaint processes. The 2017 Title IX
27
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Policy does not acknowledge or otherwise account for the reliance interests that students, or 1 2 organizations that work with students, have in these protections. A student who filed a complaint
3 regarding sexual violence before the issuance of the 2017 Title IX Policy would have been
4 assured that her educational institution should resolve the investigation within about sixty days,
5 and among other protections, she would not be cross-examined by the person who allegedly 6
assaulted her. For those students whose complaints were pending in the fall of 2017, no such 7
assurances remain. 8 9 126. The 2017 Title IX Policy’s retrenchment on Title IX protections for victims of sexual 10 harassment, including sexual violence, in educational institutions was motivated by stereotypical
11 assumptions and overbroad generalizations about girls and women. Limiting Title IX’s
12 protections disproportionately impacts female students, a fact which motivated decisionmakers. 13 Specifically, decisionmakers at the Department hold the discriminatory views, as evidenced by 14
Secretary DeVos’s and Ms. Jackson’s statements and coordination with others who hold the 15
same views, that (1) many girls and women who report sexual harassment, including sexual 16 17 violence, have misunderstood a harmless romantic advance and (2) most girls and women who
18 report sexual violence either are lying or have regret about a consensual sexual encounters. By
19 reducing protections for survivors, in the Department’s view, they would reduce and discourage
20 women and girls from making such reports of their sexual assaults, reports that Department 21
decisionmakers tend not to believe. 22
The Devastating Effects of the Department’s 2017 Title IX Policy 23 24 127. The 2017 Title IX Policy curtails important protections against sexual harassment. This 25 rollback has had devastating effects on students’ equal access to educational opportunity, which
26 is all too often thwarted on the basis of their sex.
27
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128. Following the issuance of the 2017 Title IX Policy, schools have modified and/or stated 1 2 their intention to modify their practices. For example, in the weeks following the issuance of the

3 2017 Title IX Policy, the South Dakota Board of Regents proposed “emergency revisions” to its

4 Title IX Policy that “were required to comply with the Interim Guidance [i.e., 2017 Title IX
5 Policy] issued on September 22, 2017.”57 The Board identified “revisions … to comply with the 6
requirements contained in the Interim Guidance.”58 It ultimately made a host of changes to its 7
policy to “align with” and “follow[]” the Interim Guidance. 59 The changes made by South 8 9 Dakota Board of Regents include, among others, modifications to its policy on interim measures,
10 sanctions, and mediation to “explicitly incorporate language contained in the interim

11 guidance.”60 As another example, following issuance of the 2017 Title IX Policy and after the

12 Department closed an investigation into the handling of campus sexual violence at the University
13 of Houston, the university’s spokesman stated that, in light of the current guidance, the
14 university may make some changes to how it adjudicates sexual misconduct violations to “better
15

16

17 57 South Dakota Board of Regents, Minutes of the Meeting, Oct. 3-5, 2017, at 20, https://www.sdbor.edu/the-board/minutes/Documents/BOR_Minutes_102017.pdf
18 58 South Dakota Board of Regents, Title IX Interim Guidance, Oct. 3-5, 2017, at 1,
19 https://www.sdbor.edu/theboard/agendaitems/2014AgendaItems/2017%20Agenda%20Items/October0317/5_O_BOR1017.
20 pdf.

21 59 South Dakota Board of Regents, Minutes of the Meeting, Dec. 5-7, 2017, at 30, https://www.sdbor.edu/the-board/minutes/Documents/BOR_Minutes_1217_DRAFT.pdf

22 60 South Dakota Board of Regents, Title IX Interim Guidance, Revisions to Board Policies, Dec.

23 5-7, 2017, at 1, https://www.sdbor.edu/theboard/agendaitems/2014AgendaItems/2017%20Agenda%20Items/December17/7_E_BOR1217_

24 REVISED.pdf; see also Danielle Ferguson, South Dakota Board of Regents Passes Interim Title

IX Sexual Assault Guidelines, Argus Leader, Dec. 7, 2017, http://www.argusleader.com/ 25 story/news/2017/12/07/regents-pass-interim-title-ix-sexual-assault-guidelines/926445001/ (South

26

Dakota State University vice president of student affairs stating that some of the changes were “substantive” but claiming that “most aren’t”).

27

28

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align with the [Department of Education’s] expectations to how we ensure due process.”61 In 1 2 addition, the University of Michigan has changed its Title IX Policy to adopt the option of

3 mediation between an accused student and a survivor in cases of sexual assault. This new

4 University of Michigan policy resulted from the Title IX Policy change.62 The University of
5 Kentucky has also adopted new policies regarding disciplinary procedures relating to sexual 6
assault, among which it now only permits appeals by students found responsible for sexual 7
assault, not for the survivor.63 8 9 129. Following the issuance of the 2017 Title IX Policy, universities have also changed their
10 policies in such a way that could delay resolution of reports of sexual misconduct, including

11 sexual assault.64

12

13 61 Lindsay Ellis, Feds Close Title IX Investigation Into University of Houston, Chron, Oct. 4, 2017, http://www.chron.com/local/education/campus-chronicles/article/Feds-close-Title-IX-
14 investigation-into-University-12253555.php.

15 62Jeremy Bauer-Wolf, Mediating Sexual Assault, Inside Higher Ed, Feb. 20, 2018, https://www.insidehighered.com/news/2018/02/20/university-michigan-will-now-allow-

16 mediation-some-sexual-assault-cases; Rick Fitzgerald, U-M Revises Student Sexual and Gender-

Based Misconduct Policy, The Univ. Record, Feb. 1, 2018, https://record.umich.edu/articles/u17 m-revises-student-sexual-gender-based-misconduct-policy (University of Michigan Public

18

Affairs Office explains that “[t]he change [regarding mediation] also reflects the most recent guidance from the U.S. Department of Education's Office for Civil Rights.”).

19 63 Jacob Eads, UK Administration Overhauls Disciplinary Policies Regarding Sexual Assault

20

Claims, Kentucky Kernel, June 20, 2018, http://www.kykernel.com/news/uk-administrationoverhauls-disciplinary-policies-regarding-sexual-assault-claims/article_d9808d74-74c2-11e8-

21 8509-67e774e9238c.html.

64 Press Release, Grand Valley State Univ., Update on the Impact of Interim Q&A Related to 22 Title IX (Oct. 2, 2017), https://www.gvsu.edu/inclusion/module-news-

23 view.htm?storyId=B4C32E26-0CC1-44BC-CCF964C4D07C10C3&siteModuleId=6D5DCE61CC95-4B12-A9C94F3632A6F3DD (Grand Valley State University announcing it will remove

24 its 60-day time frame for investigations.); Kara Coleman, Auburn University Re-Evaluating Title

IX Policies and Procedures, Feb. 9, 2018, www.oanow.com/news/auburnuniversity/auburn25 university-re-evaluating-title-ix-policies-and-procedures/article_16b90e14-ecf7-507c-a390-

26

85c0ad88e538.html (Auburn University removed its 60-day time frame sometime “before Christmas” and now allows for “reasonable time,” which can be “three or four months.”).

27

28

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130. Following the issuance of the 2017 Title IX Policy, the Department has begun to modify 1 2 and limit its ongoing investigations and analysis of University responses to reports of sexual

3 misconduct, including sexual violence, to conform to the new Title IX Policy. For example, in

4 June 2018 OCR issued a Letter of Findings against the University of North Carolina (“UNC”)
5 stating that UNC’s sexual harassment policy was not equitable because it did not allow for both 6
parties to appeal.65 Questioned about how this finding was consistent with the new Policy, 7
“Department spokeswoman Liz Hill said that OCR is in the process of correcting its 8 9 correspondence with the university to let it know [UNC’s] policy is consistent with the
10 department’s temporary rules.”66 The Department subsequently modified its Letter of Findings

11 with the university in order to align this enforcement action with its guidance in the 2017 Title

12 IX Policy permitting unequal appeal rights when provided to the responding party.67
13 131. Following the issuance of the 2017 Title IX Policy, numerous individuals who have been 14
the subject of sexual violence or harassment have expressed to the Plaintiffs a hesitance or 15
unwillingness to report their incidents to their school authorities, citing the Department’s 2017 16
17 Title IX Policy as the reason for their hesitation or unwillingness.

18 65 Compl. Ltr. and Resolution Agreement, UNC & OCR (June 2018), https://www.unc.edu/wp-
19 content/uploads/2018/06/FINAL-R-LOF-UNC-Chapel-Hill-11132051-PDF-1.pdf. ED seems to

20

no longer be publishing resolution agreements as a matter of course. None appear on its website post-dating the 2017 Title IX Policy, making it difficult to find additional examples.

21 66 Jeremy Bauer-Wolf, The “Confusing” Case of UNC’s Title IX Violations, Inside Higher Ed, June 27, 2018, https://www.insidehighered.com/news/2018/06/27/unc-found-have-violated-title-
22 ix-multiyear-investigation.

23 67 Compare U.S. Dep’t of Educ., OCR Complaint No. 11-13-2051 Letter of Findings, at 10 (June
25, 2018), https://www.unc.edu/wp-content/uploads/2018/06/FINAL-R-LOF-UNC-Chapel-Hill24 11132051-PDF-1.pdf (determining that the university’s policy providing an appeal only to one
25 party “is not equitable”), with U.S. Dep’t of Educ., OCR Complaint No. 11-13-2051 Amended Letter of Findings, at 1 n.1 (June 28, 2018), https://www.unc.edu/wp-
26 content/uploads/2018/07/FINAL-AMENDED-R-LOF-UNC-Chapel-Hill-11132051PDF_Redacted.pdf (amending prior Letter of Findings to “clarif[y]” that educational institutions
27 “may choose to allow an appeal . . . solely by the respondent or responding party . . . ”).

28

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132. These devastating consequences have overwhelmingly and disproportionately harmed 1 2 women and girls, among other populations that are disproportionately likely to be targeted for

3 sexual harassment and violence.

4 133. As outlined more fully in paragraphs 10-34, the consequences of the Department’s 2017
5 Title IX Policy have harmed and continue to harm Plaintiffs. Indeed, Plaintiffs are organizations 6
that assist and counsel survivors of sexual harassment, including sexual violence. As a result of 7
the chilling effect that the Department’s change in policy has had and continues to have on 8 9 reporting sexual assault and other forms of sexual harassment, Plaintiffs are unable to meet their
10 missions of serving survivors of sexual violence and other forms of sexual harassment. Further,

11 Plaintiffs have had to expend resources over and above normal levels to combat underreporting

12 that has resulted from the Department’s change in policy, causing a diversion of resources away
13 from their other core programmatic activities. 14
134. The effects of the 2017 Title IX Policy have also required Plaintiffs to expend resources 15
over and above their normal levels to combat confusion among survivors and educational 16
17 institutions and to educate both on the requirements of Title IX’s antidiscrimination provisions.

18 These resource expenditures have taken away from Plaintiffs’ other core programmatic activities,

19 causing a diversion of resources.

20

Claim for Relief

21 Count One

22

(Violation of the Administrative Procedure Act, 5 U.S.C. § 706)

23 135. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth herein. 24

25

26

27

28

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136. The Administrative Procedure Act (“APA”) empowers this Court to set aside agency 1 2 action that is arbitrary, capricious, or contrary to law. It also requires an agency to provide a
3 sufficient explanation for its actions and empowers this Court to set aside actions that were
4 undertaken without observance of procedure required by law. 5 137. The 2017 Title IX Policy is the Department’s current policy for interpreting and 6
enforcing Title IX; it contains expectations and mandates for recipients that represent a shift 7
away from prior policy. Although labeled as interim, the 2017 Title IX Policy is final agency 8 9 action for the purposes of the APA because it represents a conclusive shift in Department policy 10 that governs the enforcement and interpretation of Title IX and because it has no definite
11 termination date. Schools that receive Department funding are expected and obliged to comply
12 with the Policy in part based on the assurances of compliance they sign in order to receive such 13 funding. 14
138. By issuing the 2017 Title IX Policy, the Defendants have adopted a policy that is 15
arbitrary, capricious, and contrary to law. 16 17 139. Among other particulars, the 2017 Title IX policy arbitrarily and without reasoned
18 explanation eliminates protections designed to prevent a discriminatory educational environment.
19 It does so, for example, by permitting the use of mediation to resolve claims of sexual assault,
20 which is not only arbitrary and unexplained, but also directly contradicts the Department’s 2001 21
Guidance. It also fails to consider the reliance interests that students have in the continuation of 22
those protections. 23
24
25
26
27
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140. In addition, the 2017 Title IX policy fails to articulate an adequate reason for, or in some 1 2 cases even acknowledge, its departure from prior guidance documents and other Department

3 interpretations of Title IX and its implementing regulations, including the 2014 Q&A, 2011 Dear

4 Colleague Letter, and 2001 Guidance.
5 141. Defendants’ proffered explanation for issuing the Policy is based upon mistakes of fact 6
and law. 7
142. Defendants also acted in an arbitrary and capricious manner by implementing their 2017 8 9 Title IX policy without following the procedures required by law.
10 143. As a result of Defendants’ unlawful actions, Plaintiffs have been harmed and their

11 missions frustrated, as outlined more fully in paragraphs 11-35 above.

12 13 WHEREFORE, Plaintiffs pray that this Court:

14

1. Declare the Dear Colleague Letter and the Q&A issued in September 2017 unlawful;

15

2. Issue an injunction ordering Defendants to vacate the Dear Colleague Letter and the

16

Q&A issued in September 2017;

17 3. Award Plaintiffs costs, attorneys’ fees, and other disbursements for this action; and
18 4. Grant any other relief this Court deems appropriate.
19

20 Respectfully submitted,

Date: April 18, 2018

21 /s/ Robin F. Thurston

22

Leecia Welch (CA Bar No. 208741) Alice Y. Abrokwa*

23 Seth Galanter* National Center for Youth Law

24 405 14th Street, 15th Floor

Oakland, CA 94612, and 25 1313 L Street, NW, Suite 130

26

Washington, DC 20005 Ph: (510) 835-8098

27 Fax: (510) 835-8099

28

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Emails: lwelch@youthlaw.org, sgalanter@youthlaw.com, aabrokwa@youthlaw.org 1

2 Jennifer A. Reisch (CA Bar No. 223671) Equal Rights Advocates

3 1170 Market Street, Suite 700

San Francisco, CA 94102 4 Ph: (415) 896-0672

5

Fax: (415) 231-0011 Email: jreish@equalrightsadvocates.org

6 Javier M. Guzman*

7 Robin Thurston*

Karianne Jones* 8 Democracy Forward Foundation

9

1333 H St. NW Washington, DC 20005

10 Ph: (202) 448-9090 Fax: (202) 701-1775

11 Emails: jguzman@democracyforward.org, rthurston@democracyforward.org,

kjones@democracyforward.org 12

13

Emily Martin* Neena Chaudhry*

14 Sunu Chandy* National Women’s Law Center
15 11 Dupont Circle, NW, Suite 800

Washington, DC 20036 16 Ph: (202) 588-5180

17 Fax: (202) 588-5185 Emails: emartin@nwlc.org, nchaudhry@nwlc.org, schandy@nwlc.org,

18 *Admitted pro hac vice
19

Counsel for Plaintiffs 20

21

22

23

24

25

26

27

28

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Jennifer A. Reisch (CA Bar No. 223671) 1 Equal Rights Advocates
2 1170 Market Street, Suite 700 San Francisco, CA 94102
3 Ph: (415) 621-0672 Fax: (415) 621-6744
4 Email: jreisch@equalrights.org

5 Javier M. Guzman*

6 Robin Thurston* Karianne Jones*

7 Democracy Forward Foundation 1333 H St. NW
8 Washington, DC 20005

9

Ph: (202) 448-9090 Fax: (202) 701-1775

10 Emails: jguzman@democracyforward.org, rthurston@democracyforward.org, kjones@democracyforward.org
11

Leecia Welch (CA Bar No. 208741) 12 Seth Galanter*

13

Alice Y. Abrokwa* National Center for Youth Law

14 405 14th Street, 15th Floor Oakland, CA 94612, and
15 1313 L Street, NW, Suite 130

Washington, DC 20005 16 Ph: (510) 835-8098

17 Fax: (510) 835-8099 Emails: lwelch@youthlaw.org, sgalanter@youthlaw.com, aabrokwa@youthlaw.org

18 Emily Martin*
19 Neena Chaudhry*

Sunu Chandy* 20 National Women’s Law Center

21 11 Dupont Circle, NW, Suite 800 Washington, DC 20036

22 Ph: (202) 588-5180 Fax: (202) 588-5185
23 Emails: emartin@nwlc.org, nchaudhry@nwlc.org, schandy@nwlc.org

24 *pro hac vice
25 Counsel for Plaintiffs
26

27

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Case 3:18-cv-00535-JSC Document 123-1 Filed 04/18/19 Page 2 of 59

UNITED STATES DISTRICT COURT

1

NORTHERN DISTRICT OF CALIFORNIA

2

SAN FRANCISCO DIVISION

3 SURVJUSTICE, INC., 1015 15th Street NW, Suite 632

) )

4 Washington, DC 20005,

) )

5 EQUAL RIGHTS ADVOCATES

) )

6 1170 Market Street, Suite 700 San Francisco, CA 94102,

) )

7 VICTIM RIGHTS LAW CENTER

) )

8 520 SW Yamhill Street Portland, OR 97204,
9

) ) ) )

10

Plaintiffs,

) )

11 v.

) )

12 ELISABETH D. DEVOS, in her official

) )

capacity as Secretary of Education, 13 400 Maryland Avenue SW

) )

14 Washington, DC 20202,

) )

15 KENNETH L. MARCUS, in his official
capacity as Assistant Secretary for Civil 16 Rights,

) ) ) )

17

400 Maryland Avenue SW Washington, DC 20202,

) )

18

U.S. DEPARTMENT OF EDUCATION,

) )

19 400 Maryland Avenue SW Washington, DC 20202,
20

) ) ) )

21

Defendants.

) )

22

Case Number: 3:18-cv-00535-JSC
SECONDTHIRD AMENDED COMPLAINT FOR INJUNCTIVE RELIEF DEMAND FOR JURY TRIAL

23 1.
24

Plaintiffs SurvJustice, Inc., Equal Rights Advocates, and Victim Rights Law Center bring

this action against Defendants U.S. Department of Education (“the Department” or “the 25

26 agency”), Secretary Elisabeth DeVos, and Assistant Secretary for Civil Rights Kenneth L.

27 Marcus seeking vacatur of the Department’s new policy, as expressed in a Dear Colleague Letter

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Case 3:18-cv-00535-JSC Document 123-1 Filed 04/18/19 Page 3 of 59
and Question and Answers guidance issued on September 22, 2017 (hereinafter jointly referred 1 2 to as the “2017 Title IX Policy” or “Policy”), concerning Title IX of the Education Amendments 3 of 1972 (“Title IX”).
4 2. Over 45 years ago, Congress enacted Title IX to prohibit discrimination on the basis of 5 sex in educational programs and activities receiving federal financial assistance (hereinafter 6
“recipients” or “educational institutions”). This landmark civil rights law has helped fight sex 7
discrimination and promote equal educational access and opportunities for girls and women from 8 9 the classroom to the playing field. 10 3. Twenty years ago, acting on the basis of Supreme Court decisions and the recognition
11 that Title IX’s promise of equality is hollow if a student can be subjected to sexual harassment
12 with impunity, the Department issued its first guidance to educational institutions (both K-12 13 schools and institutions of higher education) on the standards that govern their response to sexual 14
harassment, a form of sex discrimination. Since then, through several successive guidance 15
materials issued under Administrations led by both political parties, the Department has 16 17 reaffirmed that Title IX’s prohibition on sex discrimination requires recipients to prevent and 18 redress sex and gender-based harassment. These policies recognize that students who experience
19 sexual harassment, including in its most extreme form, sexual violence, suffer not only 20 physically and emotionally, but also in their ability to participate in and benefit from educational 21
opportunities, on the basis of their sex. 22
23
24
25
26
27
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4. The reaffirmation of Title IX’s protections continued until September 2017, when the 1 2 Department formally rescinded sexual violence guidance documents issued in 2011 and 2014

3 and issued new conflicting policy documents to educational institutions.1

4 5. The 2017 Title IX Policy imposes significant changes on educational institutions and on
5 students to the detriment of survivors of sexual violence. For example, whereas previous 6
Department Title IX guidance advised educational institutions to make available interim 7
measures, such as a revised class schedule or new housing assignment, in order to protect the 8 9 safety of students who complain of sexual harassment and preserve their access to an education,
10 the 2017 Title IX Policy prohibits schools from making available interim measures to a

11 complainant unless they are offered “on equal terms” to respondent(s) who are being

12 investigated for sexual misconduct. The 2017 Title IX Policy also removes protections for sexual
13 harassment victims, such as by allowing schools to resolve complaints through mediation 14
between the parties, even in cases of alleged sexual assault, where the pressure to agree to 15
mediation can be coercive. 16
17 6. TheThe 2017 Title IX Policy is substantively unlawful. It conflicts with existing Title IX

18 requirements and fails to provide a reasoned justification for its reversal in position. It is also

19 based on a legally and factually mistaken view that earlier guidance limited due process

20 protections for students. And in issuing the 2017 Title IX Policy, the Department failed to take
21 into account reliance interests that students, and organizations like Plaintiffs that work with
22 students, have in the protections set out in prior guidance documents. Instead, the 2017 Title IX
23

24

25 1 See U.S. Dep’t of Educ., Ltr. from Ass’t Sec’y Candice Jackson (Sept. 22, 2017),

26

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf (“2017 Dear Colleague Letter”); U.S. Dep’t of Educ., Q&A on Campus Sexual Misconduct (Sept. 22, 2017),

27 https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf (“2017 Q&A”).

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Policy, which disproportionately burdens women and girls, was motivated by the baseless and 1 2 discriminatory but longstanding stereotype that women and girls tend to lie about or exaggerate

3 experiences of sexual assault and harassment. As such, it discriminates on the basis of sex in

4 violation of the equal protection guarantee of the Fifth Amendment of the United States
5 Constitution. 6
6.7. Plaintiffs therefore respectfully request that the 2017 Title IX Policy be vacated. 7
Jurisdiction and Venue 8 9 7.8. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.
10 8.9. Venue is proper under 28 U.S.C. § 1391(e) because Equal Rights Advocates, a plaintiff,

11 resides in San Francisco, California.

12

Intradistrict Assignment

13 9.10. Filing is proper in this Judicial District because Equal Rights Advocates, a plaintiff, is
14 located in San Francisco, California.
15
Parties 16

17 10.11. Plaintiff SurvJustice, Inc., (“SurvJustice”) is a national not-for-profit organization based

18 in Washington, D.C., founded in 2014. SurvJustice’s mission is to increase the prospect of

19 justice for survivors of sexual violence. It pursues this goal through legal assistance, policy

20 advocacy, and institutional training. Through its efforts, SurvJustice aims to decrease the
21 prevalence of sexual violence throughout the country.
22 11.12. SurvJustice provides legal assistance to survivors of sexual violence in campus
23 24 proceedings, as well as civil and criminal legal systems. The majority of requests for legal
25 assistance that SurvJustice receives are from students at institutions of higher education.

26 SurvJustice staff help sexual violence survivors navigate the campus grievance process,

27

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including by reporting the violence; assisting survivors throughout any investigation; advising 1 2 survivors in campus hearings; helping survivors with any appeals; and helping survivors access
3 accommodations and services from their educational institutions. They frequently serve as
4 “advisors of choice” for college students in institutional disciplinary actions for cases of alleged 5 domestic violence, dating violence, sexual assault, or stalking, as provided for by the Clery Act 6
as amended by the 2013 Violence Against Women Reauthorization Act, 20 U.S.C. § 7
1092(f)(8)(B)(iv)(II) (“Clery Act”). SurvJustice staff also represent survivors in civil litigation or 8 9 refer survivors to other qualified lawyers for such representation. SurvJustice also assists 10 survivors in reporting crimes to law enforcement, in advocating for prosecution, and by serving
11 as media representatives for victims and their families in high-profile criminal cases.
12 12.13. SurvJustice also trains educational institutions to prevent and address sexual violence 13 through compliance with federal law, enforcement of victims’ rights, and adoption of best 14
practices that include development of a culture that supports survivors and encourages “sexual 15
respect” (i.e., respect in sexual interactions and relationships). As part of this work, SurvJustice 16 17 has provided the annual training required by the Clery Act to various campus officials across the 18 country who investigate and adjudicate complaints of sexual assault, dating violence, domestic
19 violence, and stalking.
20 13.14. SurvJustice also engages in policy advocacy by providing technical assistance and advice 21
to legislators and policymakers on various state and federal legislation and policy efforts 22
regarding sexual violence, and by working with changemakers within their communities on local 23
policy efforts, especially on college and university campuses. 24 25 14.15. SurvJustice brings this action on its own behalf because the challenged 2017 Title IX
26 Policy (i) requires resource-intensive efforts that impede its daily operations; (ii) limits the
27
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efficacy of available avenues of redress for the students it serves; (iii) increases the costs it bears 1 2 in its work on behalf of sexual violence survivors—for example, by causing it to waive intake
3 fees and reduce or waive speaking fees; and (iv) otherwise directly conflicts with, impairs, and
4 frustrates SurvJustice’s organizational mission and priorities. 5 15.16. As an organization that provides direct assistance and referral services to survivors of 6
sexual violence, SurvJustice’s core mission and daily operations have been and will continue to 7
be impeded by the chilling effect that the 2017 Title IX Policy has had and continues to have on 8 9 the reporting of sexual violence. 10 16.17. Following and as a result of the 2017 Title IX Policy change, SurvJustice experienced a
11 decrease in the number of sexual violence survivors seeking its services. This trend is borne out
12 by SurvJustice’s interactions with particular college and university students who have questioned 13 whether they should continue with their plans to report sexual violence given the uncertainty 14
regarding their legal protections and an anticipated lowered likelihood of success created by the 15
policy change. 16 17 17.18. Following the 2017 Title IX Policy change and as a result of the change, SurvJustice has 18 provided an increased number of student rights trainings at college and university campuses.
19 These additional trainings are necessary to respond to confusion created by the 2017 Title IX
20 Policy among students about their legal rights. SurvJustice has also significantly reduced its price 21
for doing these trainings or agreed to provide them pro bono in response to increased need 22
resulting from the widespread uncertainty among students regarding their legal protections 23
following the 2017 Title IX Policy change. 24 25 18.19. SurvJustice has also had to devote significant staff time to reviewing and understanding
26 the 2017 Title IX Policy in order to advise clients in ongoing campus investigations and advocate
27
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on their behalf. This shift in use of time due to the change in policy decreased the amount of time 1 2 that SurvJustice has available to provide legal services, including work on ongoing civil

3 litigation.

4 19.20. The 2017 Title IX Policy makes it more difficult for SurvJustice to accomplish its
5 mission of obtaining justice for survivors of sexual violence, both because it makes beneficial 6
outcomes less likely for survivors and because even where those outcomes are still available, 7
success will take more staff time and effort. 8 9 20.21. For example, SurvJustice often advocates for schools to provide accommodations to its
10 clients, including during the pendency of an investigation, so that they can continue to learn

11 safely. SurvJustice often requests unilateral no-contact orders on its clients’ behalf but has

12 opposed mutual no-contact orders because they tend to be retaliatory.2 Yet the agency’s Title IX
13 policyPolicy change requires no-contact orders to be mutual, by prohibiting a school from 14
making interim measures available to only one party. SurvJustice has observed schools issuing 15
mutual no contact orders on a regular basis. The 2017 Title IX Policy therefore impedes 16
17 SurvJustice’s mission by making it more difficult for SurvJustice to obtain interim measures that

18 are appropriate for survivors of sexual harassment and to ensure ongoing access to education for

19 its clients in accordance with its mission.

20 21.22. In addition, since the 2017 Title IX Policy no longer identifies any benchmarks to
21 determine whether educational institutions are meeting their obligation to resolve reports of
22 sexual violence in a timely fashion, SurvJustice has observed a trend in educational institutions
23

24 2 SurvJustice argues that mutual no-contact orders are forms of retaliation when there is no basis
25 to place the order against victim-complainants other than the fact that they made a Title IX

26

complaint. In such instances, schools limit victims’ access to educational opportunities and benefits as a direct result of the victims’ assertion of their federal rights and utilization of the

27 Title IX grievance process.

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not responding at all, or not responding as promptly, to its clients’ complaints. This trend has 1 2 required SurvJustice to spend additional staff time and resources that it has not had to spend in
3 the past attempting to get school officials to respond to a survivor’s complaint of sexual violence.
4 22.23. The Department’s 2017 Title IX Policy also makes it more difficult for SurvJustice to 5 obtain beneficial results for its clients due to, among other particulars, its endorsement of one6
sided appeal rights and a heightened standard of evidence that disfavors survivors and makes 7
findings of responsibility for sexual misconduct more onerous. 8 9 23.24. Plaintiff Equal Rights Advocates (“ERA”) is a national non-profit civil rights 10 organization based in San Francisco, California. Founded in 1974, ERA is dedicated to
11 protecting and expanding economic educational access and opportunities for women and girls.
12 24.25. ERA furthers its mission through engaging in public education efforts, as well as policy 13 reform and legislative advocacy; providing free legal information and counseling; and litigating 14
cases involving issues of gender discrimination in employment and education at all stages, from 15
the administrative agency process through and including the United States Supreme Court. ERA 16 17 has a long history of pursuing gender justice and equal opportunity for women and girls in 18 education and has litigated a number of important precedent-setting cases under Title IX,
19 including Doe v. Petaluma City School District, 54 F.3d 1447 (9th Cir. 1995), which held for the
20 first time that a school can be sued for sex discrimination under that law when it fails to address 21
one student’s serious harassment of another. ERA has participated as amicus curiae in scores of 22
state and federal cases involving the interpretation and application of procedural rules and civil 23
rights laws that have an impact on access to justice and economic opportunity for women and 24 25 girls. Through its Advice and Counseling program, ERA also provides free information and
26 assists individuals on matters relating to sex and gender discrimination at work and in school. As
27
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part of its mission, ERA counsels and represents women who have been victims of sexual 1 2 harassment and/or sexual assault in matters pursuant to Title IX.
3 25.26. ERA brings this action on its own behalf because the challenged 2017 Title IX Policy
4 (i) requires resource-intensive efforts that divert resources from its daily operations; (ii) limits 5 the efficacy of available avenues of redress to ERA’s clients and others it serves, (iii) increases 6
the costs ERA bears in its work on behalf of student survivors of sexual violence; and (iv) 7
otherwise directly conflicts with, impairs, and frustrates ERA’s organizational mission and 8 9 programmatic priorities. 10 26.27. ERA has had to expend resources over and above what it would otherwise have expended
11 in order to counteract the effects of the 2017 Title IX Policy change. For example, to counteract
12 the effects of the Title IX policyPolicy change, ERA has had to divert staff time and resources 13 away from core programmatic activities, such as litigating employment-related civil rights 14
enforcement cases and cases involving Title IX enforcement that do not relate to sexual violence 15
in schools, in order to step up its efforts to assist victims of sexual harassment and assault in 16 17 educational settings obtain redress. In particular, ERA has launched a national initiative to End 18 Sexual Violence in Education (“ESVE”) to narrow a justice gap for survivors of sexual violence
19 that ERA has observed is expanding rapidly given the unlawful actions Defendants have taken.
20 Through the ESVE Initiative, which was launched as a result of the Department’s 2017 Title IX 21
Policy change, ERA is expanding its Advice & Counseling program, re-designing its intake 22
process, and developing new resources to better reach and serve individuals facing sexual 23
harassment and violence in schools. Additionally, as part of ESVE and in order to counteract the 24 25 negative impact of policy changes and rollbacks at the federal level on ERA’s clients and the
26 communities it serves, ERA is expending resources and diverting resources away from core
27
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programmatic activities in order to establish a network of attorneys to provide pro bono 1 2 counseling and other assistance to victims of sexual harassment and assault in schools. In order
3 to recruit, train, and support these pro bono attorneys and to meet the increased demand for legal
4 assistance in this area, ERA created a new position and hired its first-ever Pro Bono Coordinator. 5 It also is planning to build a new website where advocates for survivors can find and share 6
resources with each other. 7
27.28. Moreover, as an organization that has a longstanding history of providing direct 8 9 assistance and referral services to survivors of sexual violence, ERA is hampered in its ability to 10 assist the victims of sexual harassment and assault that it represents and counsels in obtaining
11 equitable outcomes and redress for the harms they have suffered. In particular, and as discussed
12 more fully below, the 2017 Title IX Policy permits schools to offer asymmetric appellate rights 13 that disadvantage victims of sexual harassment, including sexual assault; tells schools to make 14
interim safety measures, such as no-contact orders, available on “equal terms” to complainants 15
and respondents during the pendency of an investigation without any allegation that the 16 17 complainant committed any misconduct or may have done something that undermines the 18 respondent’s sense of safety; permits schools to evade responsibility for protecting students and
19 the school community as a whole by resolving claims of sexual assault privately through
20 mediation; and rolls back other critical protections for survivors that inhibit ERA’s ability to 21
obtain redress and achieve results for its clients. 22
28.29. Plaintiff Victim Rights Law Center (“VRLC”) is a non-profit organization with 23
locations in Oregon and Massachusetts dedicated solely to serving the legal needs of rape and 24 25 sexual assault victims. VRLC’s mission is to provide legal representation to victims of rape and
26
27
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sexual assault to help rebuild their lives and to promote a national movement committed to 1 2 seeking justice for every rape and sexual assault victim.
3 29.30. VRLC provides legal free, comprehensive services to help restore victims’ lives after
4 experiencing sexual violence, ensuring that survivors may stay in school; protecting their 5 privileged and confidential mental health, medical, and education records; preserving their 6
employment; maintaining safe housing; securing their immigration status; and swiftly accessing 7
victim compensation and other benefits. As part of its work, VRLC provides legal services 8 9 and/or facilitates the provision of legal services to individuals who have experienced sexual 10 violence and/or assault on elementary, secondary, and higher education campuses. With almost
11 50 percent of VRLC’s clients under the age of 24, a substantial portion of its practice is
12 providing education-related legal consultation and representation. VRLC attorneys represent 13 campus victims to communicate effectively with campus administrators, acquire interim 14
measures and accommodations to secure their education, prepare and attend disciplinary 15
hearings, file appeals, and, if necessary, file complaints with the Department of Education, 16 17 Office of Civil Rights (“OCR”). 18 30.31. VRLC brings this action on its own behalf because, as detailed below, the challenged
19 Title IX policyPolicy concretely frustrates its mission and purpose through (among other things)
20 (i) requiring resource-intensive efforts that impede its daily operations, (ii) impairing its mission 21
of providing legal assistance to survivors of sexual assault and/or violence, (iii) limiting the 22
efficacy of available avenues of redress for the population it seeks to serve, (iv) requiring that 23
resources be diverted in order to combat the harmful effects of the Title IX policyPolicy, and (v) 24 25 otherwise directly conflicts with, impairs, and frustrates VRLC’s organizational mission and
26 priorities.
27
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31.32. The new 2017 Title IX Policy has been devastating to VRLC’s mission and its 1 2 operational activities. For example, as result of the 2017 Title IX Policy, sexual violence and
3 assault victims have expressed an unwillingness to report harassment and assault to campus
4 authorities, denying VRLC the ability to achieve its mission. VRLC saw an immediate chilling 5 effect after the Department issued its 2017 Dear Colleague letterLetter and new Title IX 6
policyPolicy. VRLC has seen a decline in the number of sexual violence and assault survivors 7
willing to pursue justice through campus processes. The 2017 Title IX Policy makes it less likely 8 9 for VRLC clients to engage in the campus process due to, among other particulars, its 10 endorsement of one-sided appeal rights and a heightened standard of evidence that disfavors
11 survivors and makes findings of responsibility for sexual assault and violence more onerous.
12 Moreover, as a result of the new Title IX policyPolicy, there has been a decline in the number of 13 survivors willing to file complaints with the Department of Education and/or otherwise 14
communicating with the Department of Education where there is already an investigation 15
pending. Such declines in reporting and hesitance to participate in the grievance process either 16 17 through educational institutions or at the Department of Education directly threaten and frustrate 18 VRLC’s mission and purpose.
19 32.33. In addition to chilling and discouraging sexual violence and assault victims from availing
20 themselves of campus processes, the new Title IX policyPolicy has made it more difficult for 21
VRLC to provide appropriate legal advice that helps its clients weigh their options with the best 22
information, leading to further reductions in reports of sexual violence and assault. 23
33.34. In cases where a survivor or victim may proceed with a claim (which is rare under the 24 25 new Title IX policyPolicy), VRLC’s mission remains frustrated given the nature of the Title IX
26 policyPolicy. In particular, the 2017 Title IX Policy makes it more difficult for VRLC to
27
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accomplish its mission of obtaining justice for survivors of sexual violence, both because it 1 2 makes beneficial outcomes less likely for survivors and because even where those outcomes are
3 still available, success will take more staff time and effort. In addition, since the 2017 Title IX
4 Policy no longer requires colleges and universities to resolve reports of sexual violence in a 5 timely fashion, VRLC has observed a trend in educational institutions not responding or not 6
responding as promptly to its clients’ complaints. This trend has required VRLC to spend 7
additional staff time and resources that it has not had to spend in the past attempting to get school 8 9 officials to respond. 10 34.35. VRLC has also had to devote staff time to reviewing and understanding the 2017 Title IX
11 Policy in order to advise clients in ongoing campus investigations and advocate on their behalf.
12 This use of time has decreased the amount of time that it has available to provide legal services, 13 including work on ongoing civil litigation. 14
35.36. Defendant U.S. Department of Education (“the Department” or “the agency”) is a 15
federal agency headquartered in Washington, D.C. As discussed more fully below, the 16 17 Department implements Title IX through issuing regulations and guidance documents and is also 18 tasked with administrative enforcement of Title IX, 20 U.S.C. § 1682. As a federal agency, the
19 Department is subject to the requirements of the Administrative Procedure Act and the United
20 States Constitution. 21
36.37. Defendant Elisabeth D. DeVos is the United States Secretary of Education. She is sued 22
in her official capacity. 23
37.38. Defendant Kenneth L. Marcus is the Assistant Secretary for Civil Rights. He is sued in 24 25 his official capacity.
26
27
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Background 1 2 38.39. Sexual harassment—which is conduct including, but not limited to, unwelcome sexual

3 advances, requests for sexual favors, and other unwelcome verbal, nonverbal, or physical

4 conduct of a sexual nature that targets someone because of their sex, including sexual assault or
5 other sexual violence (hereinafter “sexual harassment” or “sexual harassment, including sexual 6
violence”)—is widespread in schools across the country, particularly in institutions of higher 7
education. 8 9 39.40. Sexual harassment disproportionately impacts women and girls. One in five women and
10 one in fourteen men experience sexual assault while in college.3 As the last Administration’s

11 Task Force to Protect Students from Sexual Assault concluded: “For female bisexual and

12 transgender students, victimization rates are even higher: More than 1 in 4 transgender students 13 and more than 1 in 3 of bisexual students experience sexual assault while in college.”4 14

15

16

17 3 The White House, The Second Report of the White House Task Force to Protect Students from Sexual Assault, 9 (Jan. 5, 2017), https://obamawhitehouse.archives.gov/sites/obamawhitehouse.

18 archives.gov/files/images/Documents/1.4.17.VAW%20Event.TF%20Report.PDF. Similarly, a

2007 report found that one in five women were victims of sexual assault while in college and 19 that approximately 6.1 percent of men were victims of sexual assault during college. Krebs, et

20

al., The Campus Sexual Assault (CSA) Study Final Report 5-5 (Oct. 2007), https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf. A report published by the American

21 Association of University Women similarly concluded that: “Girls were more likely than boys to be sexually harassed, by a significant margin (56 percent versus 40 percent) [during the 2010-

22 2011 school year]. Girls were more likely than boys to be sexually harassed both in person (52

percent versus 35 percent) and via text, e-mail, Facebook, or other electronic means (36 percent 23 versus 24 percent). This finding confirms previous research showing that girls are sexually

24

harassed more frequently than boys and that girls’ experiences tend to be more physical and intrusive than boys’ experiences.” Catherine Hill and Holly Kearl, Crossing The Line, Sexual

25 Harassment at School, American Association of University Women, 2 (2011), https://www.aauw.org/files/2013/02/Crossing-the-Line-Sexual-Harassment-at-School.pdf.

26 4 The White House, supra note 3 at 9.

27

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40.41. While sexual harassment on college campuses is more widely known, students of all ages 1 2 face sexual harassment, including sexual assault. A nationally representative survey of students

3 in grades 7-12 in 2011 concluded that nearly half of the students surveyed experienced some

4 form of sexual harassment that school year, and the majority said that the experience had a
5 negative effect on them.5 Of these students, “[g]irls were more likely than boys to be sexually 6
harassed, by a significant margin.”6 Children who experience sexual violence are nearly 14 times 7
more likely to experience rape or attempted rape in their first year of college, according to the 8 9 National Center for Victims of Crime.7
10 41.42. Experiences of sexual violence harm students physically, psychologically, and

11 academically. Research shows that the effects of sexual assault in high school has consequences

12 that are “delayed and long lasting.”8 Sexually victimized students are more likely to drop classes, 13

14

15

16

17

18

19

20 5 Hill and Kearl, supra note 3 at 2.

21 6 Id.

22 7 Mark Keierleber, The Younger Victims of Sexual Violence in School, The Atlantic, Aug. 10, 2017, https://www.theatlantic.com/education/archive/2017/08/the-younger-victims-of-sexual-
23 violence-in-school/536418/.

24 8 Dana Bolger, Gender Violence Costs: School’s Financial Obligations Under Title IX, 125, Yale

L. J. 2106, 2118 (May 2016), https://www.yalelawjournal.org/feature/gender-violence-costs-

25 schools-financial-obligations-under-title-ix#_ftnref72 (“Violence—and institutional indifference

26

in its wake—changes the courses of survivors’ lives, with educational and employment consequences following them far into the future.”).

27

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change residences, and have lower GPAs, creating long-term consequences for professional 1 2 success and earning potential.9

3 42.43. Incidents of sexual harassment, including sexual violence, are often underreported,

4 especially on college campuses. For example, the Campus Climate Survey Validation Study

5 found that only 7 percent of students who indicated that they had been raped reported the rape to
6 school authorities.10
7 43.44. If unreported or inappropriately addressed, sexual harassment can continue unchecked
8
9 and create ongoing hostile environments for those who are the targets of such attacks.

10

Title IX of the Education Amendments of 1972

11 44.45. Signed into law by President Nixon, Title IX of the Education Amendments of 1972, 20

12 U.S.C. § 1681, prohibits discrimination on the basis of sex in any federally funded education
13 program or activity. When a recipient institution fails to comply with Title IX or to take action to
14 remedy its non-compliance, it can be subject to a range of enforcement actions, including the
15 loss of federal financial assistance. 20 U.S.C. § 1682.
16

17

18

19

20

21 9 Victoria L. Banyard et al., Academic Correlates of Unwanted Sexual Contact, Intercourse, Stalking, and Intimate Partner Violence: An Understudied but Important Consequence for

22 College Students, J. of Interpersonal Violence (June 21, 2017),

http://journals.sagepub.com/doi/10.1177/0886260517715022; National Women’s Law Center, 23 Let Her Learn: Stopping School Pushout for Girls Who Have Suffered Harassment and Sexual

24

Violence, 8 (2017), https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wpcontent/uploads/2017/04/final_nwlc_Gates_HarassmentViolence.pdf (finding that 43 percent of

25 girls who are survivors of sexual violence missed 15 days or more of school, compared to 25 percent of girls overall).

26 10 The White House, supra note 3 at 10.

27

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45.46. The Supreme Court has squarely held that sexual harassment, which includes sexual 1 2 violence, is a form of sex discrimination that Title IX requires schools to address and

3 remediate.11

4

The Department of Education’s Implementation and Enforcement of Title IX

5 46.47. The U.S. Department of Education is the lead agency charged with enforcing Title IX. It
6 may do so by establishing rules, regulations, and procedures that implement Title IX and define
7 the ways in which educational institutions comply with Title IX’s requirements. See 20 U.S.C.
8
9 § 1682.

10 47.48. In 1975, the Department’s predecessor promulgated regulations to effectuate Title IX.

11 See 40 Fed. Reg. 24,128 (June 4, 1975). As amended, those regulations remain in effect today

12 and apply to educational institutions that receive federal financial assistance. See 34 C.F.R. pt.
13 106. Among other things, the regulations incorporate Title IX’s nondiscrimination mandate, see 14
id. § 106.31(a), and identify specific actions that constitute discrimination, see id. § 106.31(b), 15
and require assurances from recipients of federal financial assistance that their programs and 16
17 activities comply with regulatory requirements, see id. § 106.4(a).

18 48.49. Recipients found to have discriminated on the basis of sex must “take such remedial

19 action as the Assistant Secretary [for Civil Rights] deems necessary to overcome the effects of

20 such discrimination.” Id. § 106.3(a).
21 49.50. The regulations require that recipients “adopt and publish grievance procedures providing
22 for prompt and equitable resolution” of student and employee complaints of sexual
23
discrimination, including sexual assault and other forms of sexual harassment. Id. § 106.8(b). 24

25

26

11 See, e.g., Franklin v. Gwinnett Cnty Public Schools, 503 U.S. 60, 75 (1992) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986); Davis v. Monroe Cnty. Bd. of Educ., 526 U.S.

27 629 (1999); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998).

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Such grievance procedures are designed to facilitate the reporting and resolution of complaints of 1 2 such sex discrimination so as to prevent and remedy hostile environments on campus.

3 50.51. These same regulations require that educational institutions “designate at least one

4 employee”—commonly known as a Title IX coordinator—“to coordinate its efforts to comply
5 with and carry out its responsibilities” under Title IX, including any investigation of any 6
complaint of sexual discrimination, including sexual violence and other forms of sexual 7
harassment. Id. § 106.8(a). 8 9 52. The regulations further require that applicants for and recipients of federal financial
10 assistance sign assurances, see id. § 106.4(a), in which they commit to complying with all rules,

11 regulations, guidelines, policies, and standards related to Title IX issued by the Department.

12 There are at least two assurances that recipients of Department financial assistance may sign to

13 meet that requirement.

14 53.
15

The Department’s Assurance provides, in pertinent part:

The applicant provides this assurance for the purpose of obtaining

16

Federal grants, loans, contracts (except contracts of insurance of

17

guaranty), property, discounts, funds made available through the

U.S. Department of Education, or other Federal financial

18

assistance from the Department. This assurance applies to all

Federal financial assistance from or funds made available through

19

the Department, including any that the applicant may seek in the

future.12 20

21 Applicants agree that they “must comply” with Title IX, as well as “[a]ll regulations, guidelines,

22 and standards issued by the Department” under Title IX “in order to continue receiving Federal

23 financial assistance from the Department.”13 The Assurance specifies that it “is binding on the

24

25 12 U.S. Dep’t of Educ., Off. for C.R., Assurances of Compliance,
26 https://www2.ed.gov/about/offices/list/ocr/letters/boy-scouts-assurance-form.pdf. 13 Id.
27

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applicant” and that, if the applicant fails to comply, “financial assistance can be terminated and 1 2 the applicant can be declared ineligible to receive further assistance.”14

3 54. The Department’s Revised Assurances Template for a consolidated State plan

4 incorporates the Office of Management and Budget’s (OMB’s) Standard Form 424B, Assurances
5 for Non-Construction Programs.15 Recipients that sign this assurance form agree to comply with 6
Title IX, as well as with “all applicable requirements of all other Federal laws, executive orders, 7
regulations, and policies governing this program.”16 An applicant “certifies and assures 8 9 compliance with” that form “in order to receive Federal allocations” of funding.17 The Revised
10 Assurances Template that is posted on the Department’s website was in effect at the time the

11 challenged Title IX Policy was issued on September 22, 2017.18 Further, although that version

12 of the Revised Assurances Template lists an expiration date under the Paperwork Reduction Act 13 of September 30, 2017, the Department sought19 and received20 an “extension without change” 14

15

16 14 Id.

17 15 U.S. Dep’t of Educ., Revised Assurances Template 2 (May 2017), https://www2.ed.gov/admins/lead/account/stateplan17/reviseded18100576.pdf (“An authorized

18 representative of the SEA must sign the enclosed assurances and the standard forms attached in Appendix A …); id. at 5 (“The SEA certifies and assures compliance with the

19 following enclosed forms: 1) Assurances for Non-Construction Programs (SF 424B Form).”).

16 Id. at 6-7 ¶¶ 6, 18. 20 17 Id. at 5, 2 (last checkbox).

21

18 Id. at 1. 19 82 Fed. Reg. 34,291 (July 24, 2017) (“proposing an extension of an existing information

22 collection”), https://www.govinfo.gov/content/pkg/FR-2017-07-24/pdf/2017-15449.pdf;

Regulations.gov, https://www.regulations.gov/document?D=ED-2017-ICCD-0021-0522 (listing

23 forms, including Standard Form 424B, that were part of proposed extension).

20 See OMB, Information Collection Request – Office of Information and Regulatory Affairs, 24 Conclusion, https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201707-1810-001#

25 (“Conclusion Action” was “[a]pproved without change” with a new expiration date of “09/30/2020”); see also OMB, Documents for Information Collection (including Standard Form

26 424B as one of the documents included in the OMB approval),

https://www.reginfo.gov/public/do/PRAViewIC?ref_nbr=201707-1810-001&icID=21256.

27

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of the Revised Assurances Template until September 30, 2020. A recipient’s promise to comply 1 2 with the Assurance attached to the Revised Assurances Template is therefore still in effect.

3 51.55. In addition to promulgating Title IX’s implementing regulations, the Department has

4 issued a series of guidance documents that explain the obligations recipient schools and
5 universities are required to take under Title IX. In the recent past, the Department has used the 6
synonyms “guidance” and “guidelines” interchangeably in describing its Title IX policies.21 The 7
guidance document challenged here, the 2017 Title IX Policy, consists of “guidelines” and 8 9 “policies” that schools must comply with under the terms of the signed assurances. Furthermore,
10 as the Department declared when it announced the 2017 Title IX Policy, the new guidance

11 “explains the Department’s current expectations of schools.”22

12

The 1997 Sexual Harassment Guidance

13 52.56. The first of suchthe Department’s guidance documents addressing educational
14 institutions’ obligations to address sexual harassment, titled Sexual Harassment Guidance:
15
Harassment of Students by School Employees, Other Students, or Third Parties, was published in 16

17 1997 after a public notice and comment period and “extensive consultation with interested

18 parties, [including] students, teachers, school administrators, and researchers.” See 61 Fed. Reg.

19 42,728 (Aug. 16, 1996),); 61 Fed. Reg. 52,172 (Oct. 4, 1996), and); 62 Fed. Reg. 12,034, 12,035

20 (Mar. 13, 1997) (“1997 Guidance”). The 1997 Guidance provided information regarding the
21 standards used by the Department’s Office for Civil Rights (“OCR”) to investigate student
22

23
21 See Press Release, U.S. Dep’t of Educ., Guidance Issued on Responsibilities of Schools to 24 Address Sexual Violence, Other Forms of Sex Discrimination (Apr. 29, 2014),
25 https://www.ed.gov/news/press-releases/guidance-issued-responsibilities-schools-addresssexual-violence-other-forms-sex-discrimination.
26 22 Press Release, U.S. Dep’t of Educ., Department of Education Issues New Interim Guidance on Campus Sexual Misconduct (Sept. 22, 2017), https://www.ed.gov/news/press-
27 releases/department-education-issues-new-interim-guidance-campus-sexual-misconduct.

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complaints regarding educational institutions’ responses to sexual harassment perpetuated by 1 2 school employees, other students (peers), or third parties.
3 53.57. The 1997 Guidance set forth principles for how educational institutions should address
4 sexual harassment in the educational setting. It noted that schools “are required by the Title IX 5 regulations to adopt and publish grievance procedures providing for prompt and equitable 6
resolution of sex discrimination complaints, including complaints of sexual harassment, and to 7
disseminate a policy against sex discrimination.” Id62 Fed. Reg. at 12,040. 8 9 54.58. With respect to “informal mechanisms” for resolving complaints, the 1997 Guidance 10 explained that they may be used by mutual consent of the parties but that it was inappropriate for
11 a complaining student to be required to work out the problem directly with the individual
12 accused of harassment and that mediation would be inappropriate even on a voluntary basis in 13 cases that involve sexual assault. Id. at 12,045. 14
55.59. The 1997 Guidance further explained that, during an investigation of a complaint, a 15
school may take appropriate interim and remedial measures, such as placing the involved 16 17 students in separate classes or in different housing arrangements. The touchstone for these 18 measures was that they “be designed to minimize, as much as possible, the burden on the student
19 who was harassed.” Id. at 12,043.
20 56.60. The 1997 Guidance also made clear that, beyond temporary interim accommodations, a 21
school “may be required to provide . . . services to the student who was harassed if necessary to 22
address the effects of the harassment on that student.” Such service might include tutoring and 23
mental health counseling. Id. 24
25
26
27
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57.61. The 1997 Guidance set forth factors that OCR would consider in evaluating whether a 1 2 school’s grievance procedures were “prompt and equitable,” noting that “many schools …

3 provide an opportunity to appeal the findings or remedy or both.” Id. at 12,044.

4 58.62. The 1997 Guidance explained that other legal or adjudicatory processes could not
5 substitute for a school’s own processes. For example, where possible criminal conduct was 6
involved, a police investigation “may be useful in terms of fact-gathering,” but, “because legal 7
standards for criminal conduct are different, police investigations or reports may not be 8 9 determinative of whether harassment occurred under Title IX and do not relieve the school of its
10 duty to respond promptly.” Id. at 12,045.

11

The 2001 Revised Sexual Harassment Guidance

12 59.63. Following the Supreme Court’s 1998 decision in Gebser v. Lago Vista Indep. Sch. Dist.,
13 524 U.S. 274 (1998) and its 1999 decision in Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 14
(1999), the Department issued revisions to the 1997 Guidance in 2001, entitled Revised Sexual 15
Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third 16
17 Parties. See 66 Fed. Reg. 5512 (Jan. 19, 2001).

18 60.64. The 2001 Guidance, which also followed a public notice and comment period, see 62

19 Fed. Reg. 66,092 (Nov. 2, 2000), reaffirms many of the principles set forth in the 1997

20 Guidance. It “explains how the requirements of the Title IX regulations apply to situations
21 involving sexual harassment of a student and outlines measures that schools should take to
22 ensure compliance [with Title IX and its implementing regulations].” 2001 Guidance at 4.
23 24 61.65. The 2001 Guidance reaffirms the requirement that educational institutions publish
25 grievance procedures “providing for prompt and equitable resolution of sex discrimination

26

27

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complaints, including complaints of sexual harassment, and to disseminate a policy against sex 1 2 discrimination.” Id. at 14.
3 62.66. The 2001 Guidance further provides that “[o]nce a school has notice of possible sexual
4 harassment of students—whether carried out by employees, other students, or third parties—it 5 should take immediate and appropriate steps to investigate or otherwise determine what occurred 6
and take prompt and effective steps reasonably calculated to end any harassment, eliminate a 7
hostile environment if one has been created, and prevent harassment from occurring again.” Id. 8 9 at 15. 10 63.67. The 2001 Guidance specifies a number of factors that would be considered in
11 determining whether an educational institution’s grievance procedures were “prompt and
12 equitable,” as required by Title IX and the Department’s implementing regulations, including, as 13 in the 1997 Guidance, the acknowledgment that many schools “provid[ed] an opportunity to 14
appeal the findings or remedy or both.” Id. at 20. 15
64.68. The 2001 Guidance also reaffirms that although informal resolution of complaints might 16 17 be appropriate in some cases, OCR had “frequently advised schools” that “mediation” or other 18 informal resolution would not be appropriate in the context of some forms of sexual harassment,
19 such as sexual assault, even on a voluntary basis. Id. at 21.
20 65.69. The 2001 Guidance also reiterates the importance of interim measures discussed in the 21
1997 Guidance, stressing that such measures “should be designed to minimize, as much as 22
possible, the burden on the student who was harassed.” Id. at 16. 23
66.70. Like the 1997 Guidance, the 2001 Guidance made clear that, after an investigation has 24 25 concluded, a school “may be required to provide. . . services to the student who was harassed if
26 necessary to address the effects of the harassment on that student.” Id. at 16-17.
27
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67.71. The 2001 Guidance cautions schools, as did the 1997 Guidance, about relying on police 1 2 or insurance company investigations as a substitute for their own processes, again emphasizing

3 the different purposes and legal standards applicable in those third-party investigations. Id. at 21.

4 68.72. Finally, the 2001 Guidance notes that both employees and students of public schools and
5 universities are entitled to certain Constitutional due process protections, and that the rights 6
established under Title IX must be interpreted consistent with any federally guaranteed due 7
process rights involved in a complaint proceeding. The guidance instructed, however, that 8 9 recipients should ensure that “steps to accord due process rights do not restrict or unnecessarily
10 delay the protections provided by Title IX to the complainant.” Id. at 22.

11

The 2011 Dear Colleague Letter and 2014 Q&A Document

12 69.73. Even with the Department’s enforcement and guidance activities, sexual harassment,
13 including sexual violence, has remained a pervasive problem on campuses and in schools across 14
the country. 15
70.74. In the wake of these ongoing challenges, educational institutions solicited assistance from 16
17 the Department of Education in further understanding their obligations under Title IX in regard

18 to sexual harassment, particularly sexual violence. Thereafter, in 2011, the Department issued a

19 “Dear Colleague Letter on Sexual Violence” and, in 2014, a set of Questions and Answers to

20 respond to additional concerns raised by schools and students.23
21 71.75. Citing the “deeply troubling” statistics concerning sexual violence on campuses, the 2011
22 Dear Colleague Letter provided clarity on how schools should address peer-on-peer sexual
23

24

25 23 See U.S. Dep’t of Educ., Ltr. from Ass’t Sec’y Russlynn Ali (Apr. 4, 2011),

26

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf (“2011 Dear Colleague Letter”); U.S. Dep’t of Educ., Questions and Answers on Title IX and Sexual Violence (Apr. 29,

27 2014), https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (“2014 Q&A”).

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harassment, including sexual violence, as well as steps that schools could take to respond in 1 2 accordance with the Department’s regulations and 2001 Guidance.
3 72.76. The 2011 Dear Colleague Letter reiterated, consistent with the 2001 Guidance, the
4 importance of schools offering services to survivors, such as tutoring and mental health care, to 5 ensure that they can continue to learn in the wake of sexual harassment, including sexual 6
violence. 2011 Dear Colleague Letter at 15-17. It noted, again consistent with the 2001 7
Guidance, that necessary accommodations may include interim remedies to protect the 8 9 complainant during the investigation. Id. at 15. 10 73.77. As in the 2001 Guidance, the 2011 Dear Colleague Letter discussed what constitutes a
11 prompt and equitable adjudication. The 2011 Dear Colleague Letter also made clear that Title IX
12 requires schools to provide complainants and respondents equal rights and opportunities 13 throughout an investigation and any appellate process. Id. at 12. 14
74.78. The 2011 Dear Colleague Letter also discouraged schools from allowing a complainant 15
and alleged perpetrator to directly cross-examine each other. As the guidance explained, 16 17 “[a]llowing an alleged perpetrator to question an alleged victim directly may be traumatic or 18 intimidating, thereby possibly escalating or perpetuating a hostile environment.” Id. at 12.
19 75.79. The 2011 Dear Colleague Letter reiterated the ongoing policy expressed in the 2001
20 Guidance that mediation is an inappropriate way to resolve sexual violence complaints. Id. at 8. 21
76.80. The 2011 Dear Colleague Letter also discussed, in response to questions that school 22
administrators had posed, the burden of proof that recipient schools should use in investigating 23
complaints of sexual assault. The 2011 Dear Colleague Letter explained that, in investigating 24 25 Title IX complaints, OCR reviews a school’s grievance procedures to determine whether a
26 school uses preponderance of the evidence as the complainant’s burden of proof. It explained
27
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that this burden appropriately reflected the burden used in litigation under Title VII of the Civil 1 2 Rights Act of 1964, to which courts have looked in construing Title IX, as well as the burden
3 used by OCR in investigating Title IX complaints against recipients of federal funding. Id. at 11.
4 77.81. Also consistent with the 2001 Guidance, the 2011 Dear Colleague Letter reiterated that 5 public and state-supported schools must provide due process protections to an alleged 6
perpetrator. Id. at 12. 7
78.82. In 2014, the Department issued further clarifications consistent with its previously issued 8 9 guidance in response to questions that it received from schools and colleges in the form of a 10 Questions and Answers document (“2014 Q&A”). The 2014 Q&A provided examples of
11 proactive efforts schools could take to prevent sexual violence and remedies schools could use to
12 end such conduct, prevent its recurrence, and address its effects. 13 79.83. Among other things, the 2014 Q&A further discussed Title IX’s mandate that schools 14
take steps to ensure equal access to educational programs and activities, including by protecting 15
a complainant with interim measures pending resolution of a complaint. Such measures should 16 17 allow the complainant to avoid contact with the alleged perpetrator and “to change academic and 18 extracurricular activities or his or her living, transportation, dining, and working situations as
19 appropriate.” 2014 Q&A at 32. This requirement is consistent with the 2001 Guidance’s
20 emphasis on Title IX’s mandate to take immediate steps once a complaint is filed to eliminate 21
any hostile environment and prevent harassment from occurring again. Id. at 32-33; see also 22
2001 Guidance at 12. 23
80.84. The 2014 Q&A also emphasized that schools should provide the same rights and 24 25 opportunities to complainants and respondents. 2014 Q&A at 26.
26
27
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81.85. The 2011 Dear Colleague Letter and the 2014 Q&A did not reflect any policy change, but 1 2 rather reminded schools of longstanding statutory and regulatory obligations to address sexual

3 harassment, including sexual violence, while providing more details and examples of how to do

4 so. Both documents were the product of the Department’s consideration of the standards that

5 OCR had relied on in dozens of investigations and reflected the input of students, faculty,

6 administrators, staff, attorneys, Sexual Assault Response Teams (“SARTs”), counselors, student
7 advocates, medical personnel, parents, law enforcement, prosecutors, and campus police.
8

9

The Trump Administration’s Change in Title IX Policy

10 82.86. Following his inauguration, President Trump appointed Secretary DeVos to lead the

11 Department of Education. In April 2017, Secretary DeVos selected Candice Jackson to serve as

12 Deputy Assistant Secretary and to lead OCR as Acting Assistant Secretary for Civil Rights.
13 83.87. Secretary DeVos and Ms. Jackson have repeatedly criticized the protections that Title IX 14
affords to women and other survivors of sexual harassment, including sexual violence. Much of 15
that criticism has been based on discriminatory stereotypes and unfounded generalizations about 16
17 female students in general and female victims of sexual violence in particular. There is a

18 longstanding and inaccurate stereotype that women and girls tend to lie about or misunderstand

19 sexual assault and harassment. For example, a recent study published in the Psychology of

20 Violence determined that police routinely rely on rape myths, such as that the victim was lying
21 or that the victim had given consent, in judging whether a case should be referred to a
22 prosecutor.24 Secretary DeVos’DeVos and Ms. Jackson’s statements and actions reveal that their
23

24
25 24 See Romeo Vitelli, Rape Myths and the Search for True Justice, Psychology Today, Oct. 26, 2017, https://www.psychologytoday.com/us/blog/media-spotlight/201710/rape-myths-and-the-
26 search-true-justice (citing and linking to Psychology of Violence study, Jessica Shaw, et al., Beyond Surveys and Scales: How Rape Myths Manifest in Sexual Assault Police Records, 7(4)
27

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decision-making regarding the 2017 Title IX Policy was motivated at least in part by these 1 2 stereotypes.

3 84.88. For example, Ms. Jackson has repeatedly criticized core civil rights achievements, such

4 as legal protections against sexual harassment. In a book she published in 2005, Ms. Jackson

5 stated that laws to combat sexual harassment gloss over “the reality that unwanted sexual
6 advances are difficult to define.”25
7 85.89. Ms. Jackson regularly questions the veracity of sexual harassment and assault claims
8
9 made by women, stating, for example:

10

[I]t wasn’t enough that women are not legally forbidden anymore from getting an

education and entering the workforce. Feminists and other leftists thought the

11

problem of workplace sexual harassment needed a legal remedy. Since sexual

harassment is such a nebulous experience, defined so subjectively and turning on

12

the perceptions of the people involved, laws banning it are difficult to articulate.

13

But they have tried anyway, with the side result that many men self-censor themselves to avoid being accused of sexual harassment, and institutions remove

14

valid expressions of art and learning to avoid “even the appearance of sexual

harassment.”26

15

86.90. In October 2016, a few months before joining the Department, Ms. Jackson stated in a 16

17 social media post that women who claimed that Donald Trump sexually harassed them were

18 lying “for political gain,” and “evidence is piling up that shows these recent accusers against

19

20

21 Psychology of Violence 602 (Oct. 2017)); .”); Critical Issues on Violence Against Women:

22

International Perspectives and Promising Strategies 96 (Holly Johnson, et al., eds., Routledge 2015), available at

23 https://books.google.com/books?id=pD62BQAAQBAJ&pg=PA96#v=onepage&q&f=false (“Allegations that women lie about sexual assault are not new. … Despite social advancements

24 in the past several decades regarding rape awareness, negative attitudes and belief in ‘rape

myths’ are still pervasive.”). 25
25 Candice Jackson, Their Lives: The Women Targeted by the Clinton Machine (2005), at 138.

26 26 Id.

27

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Trump are, frankly, fake victims.27 Ms. Jackson’s post came just days after a tape surfaced of 1 2 then-candidate Trump expressly bragging about sexually assaulting women.

3 87.91. Similarly, and for example, in the past, Secretary DeVos has provided substantial

4 financial contributions—a form of speech—to FIRE, an organization that advocates for schools
5 to abdicate their responsibility to address sexual violence and instead defer entirely to law 6
enforcement.28 FIRE asserts that the 2011 Dear Colleague Letter “eviscerated due process rights 7
of students and faculty accused of sexual misconduct on campus.”29 FIRE has previously 8 9 litigated against the Department to weaken Title IX’s protections, including by arguing that the
10 preponderance of the evidence standard, which is used in nearly all civil matters, is unfair to the

11 alleged perpetrator in a Title IX grievance proceeding.

12

13

14

15 27 Tyler Kingkade, The Lawyer Who Helped Bill Clinton’s Rape Accusers May Have Scored A Top Civil Rights Job Under Trump, BuzzFeed News, Apr. 3, 2017,

16 https://www.buzzfeednews.com/article/tylerkingkade/the-lawyer-who-helped-clinton-rape-

accusers-may-have-scored#.ej6ZKYBG8X; see also Annie Waldman, DeVos Pick to Head Civil 17 Rights Office Once Said She Faced Discrimination for Being White, Pro Publica (, Apr. 14,

18

2017),, https://www.propublica.org/article/devos-candice-jackson-civil-rights-office-educationdepartment.

19 28 Benjamin Wermund, DeVos’ Donations Spark Questions About Her Stance On Sexual Assault,

20

Politico, Jan. 9, 2017, https://www.politico.com/story/2017/01/betsy-devos-education-sexualassault-233376; Alex Morey, Baylor Rape Controversy More Evidence Colleges Unequipped to

21 Decide Sexual Assault Cases, Found. for Individual Rights in Educ. ((“FIRE), ”) (Sept. 14, 2015,), https://www.thefire.org/baylor-rape-controversy-more-evidence-colleges-unequipped-to-

22 decide-sexual-assault-cases/.; Robert Shibley, Time to Call the Cops: Title IX Has Failed

Campus Sexual Assault, TIME, Dec. 1, 2014, http://time.com/3612667/campus-sexual-assault23 uva-rape-titleix/ (FIRE’s senior vice president arguing that campus responses “encourage[ ]

24

silence or the avoidance of law enforcement” in the wake of the Rolling Stone account of alleged rape at a fraternity house at the University of Virginia).

25 29 Dear Colleague: It’s Over! Education Department Rescinds Controversial 2011 Letter, FIRE,

26

Sept. 22, 2017, https://www.thefire.org/dear-colleague-its-over-education-department-rescindscontroversial-2011-letter/.

27

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88.92. Since they have assumed their current roles at the Department, Secretary DeVos’s and 1 2 Ms. Jackson’s official actions and statements preceding the 2017 Title IX Policy reveal their

3 discriminatory motivation.

4 89.93. For example, Secretary DeVos actively solicited the views of those individuals and
5 groups that oppose robust Title IX protections and have questioned the veracity of survivors’ 6
experiences. Shortly after assuming her role as Secretary, Secretary DeVos met with State 7
Representative Earl Ehrhart from Georgia—a notorious opponent of Title IX—to discuss, among 8 9 other topics, Title IX enforcement.30 Representative Ehrhart has pushed a state bill that would
10 require colleges to refer all sexual assault reports to the police, even against a victim’s expressed

11 wishes, a dangerous policy that would discourage reporting by victims. He has also questioned

12 women’s credibility on the experience of sexual assault, accusing one woman of “utilizing a
13 victim’s status” for ulterior motives.31 Similarly, during the summer of 2017, Secretary DeVos
14 met with the National Coalition for Men, an organization that has published photos of women
15 who have made complaints of rape, calling them “false victims.”32 This Coalition has referred to
16
17 rape survivors as “anti-male.” 33

18 30 Kathryn Joyce, The Takedown of Title IX, N.Y. Times, Dec. 5, 2017,
19 https://www.nytimes.com/2017/12/05/magazine/the-takedown-of-title-ix.html?_r=0 (“Ehrhart 20 came away from his meeting gratified that DeVos seemed to agree with him on the limited role
that federal authorities should play. ‘She’s placing this back where it belongs,’ he told me, ‘in the 21 purview of the states.’”)

22 31 Letter from Nat’l Women’s Law Ctr, et al. to Elisbeth DeVos, Sec’y of Educ., Apr. 17, 2017, https://nwlc.org/wp-content/uploads/2017/04/April-17-2017-Letter-to-Secretary-DeVos.pdf.

23 32 Jessica Valenti, Why is Betsy DeVos Enabling Rape Deniers?, The Guardian, July 14, 2017,

24

https://www.theguardian.com/commentisfree/2017/jul/14/betsy-devos-accused-rapists-meetingssexual-assault.

25 33 Tyler Kingkade, These Democratic Senators Are Blasting Betsy DeVos For Her Approach To

26

Campus Rape, Buzzfeed, July 12, 2017, https://www.buzzfeed.com/tylerkingkade/thesedemocratic-senators-are-blasting-betsy-devos-for-her?utm_term=.sd2GyLb3M#.lvOz57wgB.

27

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90.94. Similarly, Candice Jackson proactively sought out the views and input of those 1 2 individuals who question the veracity of women and girl’s reports of sexual harassment and

3 assault, as the Defendants developed the new Policy. According to documents released by the

4 Department in response to a Freedom of Information Act request, she had a dinner meeting with
5 Chris Perry, Deputy Executive Director of Stop Abusive and Violent Environments (“SAVE”), 6
and others in advance of the release of the 2017 Title IX Policy to discuss the Dear Colleague 7
Letter. SAVE’s mission includes stopping “false accusations” of sexual assault, and its website 8 9 repeats a discredited and aberrational study that concluded that 41% of rape claims are false.34
10 91.95. FOIA records also show that in May 2017, Ms. Jackson telephoned Gordon E. Finley

11 regarding his writing on issues related to sexual assault. Mr. Finley is a member of the National

12 Coalition for Men and a professor at Florida International University who opines frequently on
13 sexual harassment and assault, including essays such as “Sex: The New War on Men,”35 and “A 14
false accusation can spell the end of a college male’s future,” which relies on studies that assert 15
(incorrectly) that rates of false allegations regarding rape and other sexual abuse range from 41 16
17 to 62 percent. 36 In an email response, after thanking Ms. Jackson for her “kind call” and saying

18

19 34 SAVE, Falsely Accused of Sexual Assault, http://www.saveservices.org/dv/falsely-

20

accused/sex-assault/; see SAVE, Ten Myths of Campus Sexual Assault, http://www.saveservices.org/sexual-assault/ten-myths/.

21 35 Gordon E. Finley, Sex: The New War on Men, Nat’l Coal. for Men, May 12, 2014,
https://ncfm.org/2014/05/action/ncfm-advisor-gordon-finley-ph-d-sex-the-new-war-on-men/ 22 (“Sexual allegations made by females are not taken as allegations but rather as ‘settled fact.’
23 These claims do not even consider the possibility that women might lie about any manner of things sexual …” and “The former definition of forcible rape has morphed into anything sexual
24 without “consent” and with the determination of “consent” left entirely up to the woman, even to be determined on the morning after.”).
25 36 See NCFM Adviser Gordon Finley Letter, “A False Accusation Can Spell the End of College
26 Male’s Future,” Published in the Boston Globe, Nat’l Coal. for Men, Oct. 18, 2014, https://ncfm.org/2014/10/news/discrimination-news/discrimination-against-men-news/ncfm-
27

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“[i]t’s always nice to know that someone actually reads what you write,” Mr. Finley directed Ms. 1 2 Jackson to additional of his writings, including the two previously identified.

3 92.96. Ms. Jackson was also in regular email contact with Cynthia Garrett, co-President of

4 Families Advocating for Campus Equality (“FACE”), and others at FACE, regarding the
5 Department’s Title IX policyPolicy. FACE, which is comprised primarily of mothers of boys and 6
men who have been accused of sexual harassment and assault, “advocate[es] for the rights of 7
falsely accused students.”37 One of these FACE members told the New York Times of her son’s 8 9 expulsion for having sex with a student who was too intoxicated to give consent, “[i]n my
10 generation, what these girls are going through was never considered assault . . .… It was

11 considered, ‘I was stupid and I got embarrassed.’”38

12 93.97. Ms. Jackson coordinated with Ms. Garrett regarding a letter campaign from FACE
13 members to the Department regarding the Department’s Title IX sexual violence policy. By and 14
large, these letters presented stories of supposedly false accusations of sexual assault or 15
harassment by women or girls against boys and men. Ms. Jackson also requested that FACE 16
17 publish numerous op-eds regarding the Department’s Title IX policyPolicy in advance of

18 Secretary DeVos’s September 2017 speech on the Department’s Title IX policyPolicy.

19 94.98. In contrast to the Department’s solicitation of persons and organizations with views that

20 female sexual assault survivors are prone to exaggerate or fabricate accusations, the Department 21

22

23 adviser-gordon-finley-letter-a-false-accusation-can-spell-the-end-of-college-males-futurepublished-in-the-boston-globe/.
24 37 FACE, Title IX’s Other Victims, https://www.facecampusequality.org/ourstories/.

25 38 Anemona Hortocollis & Christina Capecchi, ‘Willing to Do Everything,’ Mothers Defend Sons

26

Accused of Sexual Assault, N.Y. Times, Oct. 22, 2017, https://www.nytimes.com/2017/10/22/us/campus-sex-assault-mothers.html.

27

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met with organizations that advocate for Title IX’s protections for survivors only after repeated, 1 2 collective requests from those organizations. Plaintiffs, along with other organizations that

3 advocate for Title IX’s protections for sexual assault survivors, sent Secretary DeVos a letter in

4 April 2017 urging her to consider the views of sexual assault survivors and groups dedicated to
5 survivors’ rights, as opposed to the biased and extreme views held by Mr. Ehrhart and others.39 6
While Department decisionmakers did eventually meet with SurvJustice and others representing 7
the views of sexual violence survivors, one survivors’ rights group, Know Your IX, was 8 9 disinvited after its co-founders published an op-ed critical of the Office for Civil Rights.
10 95.99. The views of individuals arguing that women tend to lie about sexual harassment and

11 assault, especially in educational settings, influenced and infected the Department’s decision-

12 making. For example, FOIA records show that on July 18, 2017, Candice Jackson discussed a
13 book titled “Unwanted Advances: If this is feminism, it’s feminism hijacked by melodrama” 14
with OCR staff and remarked on “how helpful it has been in reference to the issues we are 15
discussing.” In an email to Department colleagues attaching a summary of the book and 16
17 referencing Ms. Jackson’s favorable view of it, OCR’s Confidential Assistant instructed the

18 group, “[i]t is imperative that we all read either the summary or the book . . .… before

19 tomorrow’s meeting.” The attached book summary included the following statements:

20

The existing Title IX guidance from the Department was motivated by “an ill-

21

conceived effort to protect women students from a rapidly growing catalogue of

sexual bogeymen.”

22 “Sexual paranoia has converted the Title IX bureaucracy into an insatiable

23

behemoth, bloated by its own federal power grab, though protests are few

because—what are you, in favor of rape culture or something?” 24

25

26 27 39 Letter from Nat’l Women’s Law Ctr, et al., supra note 20.

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“It turns out that rampant accusation is the new norm on today’s campus; the

1

place is a secret cornucopia of accusation, especially when it comes to sex.”

2

“[W]e seem to be breeding a generation of students, mostly female students,

3

deploying Title IX to remedy sexual ambivalences or awkward sexual

experiences, and to adjudicate relationship disputes post-breakup—and campus

4

administrators are allowing it.”

5

“[A]ny number of other cases I learned about: astounding levels of bias against

6

accused men, inventive deployments of the preponderance standard, and female complainants with ambiguous motives. I don’t wish to betray my gender, but the

7

premise that accusers don’t lie turns out to be mythical. By sentimentalizing

women in such preposterous ways, aren’t Title IX officials setting schools up as

8

cash cows for some of our more creatively inclined women students?”

9 96.100.

Although Title IX affords protections to all victims of discriminatory conduct on

10 the basis of sex, Secretary DeVos and Ms. Jackson have criticized the protections that civil rights
11 laws, such as Title IX, afford to women, continuing to base their statements on stereotypes about
12 college women and women who are survivors of sexual harassment, including sexual assault, as
13
14 fabricators and exaggerators.

15 97.101.

In a July 2017 article in the New York Times, in which Ms. Jackson was quoted,

16 she publicly propounded discriminatory stereotypes of women who survive sexual assault.

17 Regarding investigations conducted by schools and universities to identify and remedy unlawful

18 sexual violence and other forms of harassment, she echoed many of the views expressed by

19 groups and individuals from whom she sought input:
20

[In most investigations there’s] not even an accusation that these accused students

21

overrode the will of a young woman. Rather, the accusations—90 percent of

22

them—fall into the category of ‘we were both drunk,’ ‘we broke up, and six

months later I found myself under a Title IX investigation because she just

23

decided that our last sleeping together was not quite right.’40

24

25 40 Erica L. Green & Sheryl Gay Stolberg, Policies Get a New Look as the Accused Get DeVos’s

26

Ear, N.Y. Times, July 13, 2017 (emphasis added), https://www.nytimes.com/2017/07/12/us/politics/campus-rape-betsy-devos-title-iv-education-

27 trump-candice-jackson.html.

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98.102. 1

In September 2017, Secretary DeVos gave a speech on campus sexual

2 harassment, including sexual violence, at George Mason University. In her remarks, she cited a

3 number of examples where students, particularly male students accused of sexual violence, were

4 allegedly treated unfairly by their schools. She used these examples to justify rescinding the
5 2011 Dear Colleague Letter and 2014 Q&A.41 Yet these anecdotes involve problems that arose 6
because schools did not follow the then-existing guidance, and therefore do not support 7
rescission of that guidance. Moreover, many of the anecdotes used by Secretary DeVos in her 8 9 speech were misleading and/or untrue, in that they recounted supposed facts that the parties to
10 the incident disputed.

11 99.103.

Secretary DeVos’s September 2017 speech presented as equally problematic the

12 harm faced by sexual violence survivors and the harm faced by individuals who have been
13 falsely accused, despite a lack of evidence that the latter is a widespread problem extending 14
beyond a few occurrences, unlike the former.42 Rather than recognizing that false accusations are 15
rare, Secretary DeVos presented the problem of false accusations as rampant. On the contrary, 16 17 research shows that the prevalence of false allegations of sexual assault is very low—false
18 accusations regarding criminal sexual assault, for example, are estimated at 2-10 percent.43

19 100.104. Secretary DeVos also asserted that the loss of due process protections for alleged

20 perpetrators is a widespread problem on school campuses, mentioning “due process” ten times 21

22 41 See Elisabeth DeVos, Sec’y of the U.S. Dep’t of Educ., Remarks on Title IX Enforcement at
23 George Mason University (Sept. 7, 2017), https://www.ed.gov/news/speeches/secretary-devosprepared-remarks-title-ix-enforcement (“DeVos Remarks”).
24 42 See DeVos Remarks.

25 43 David Lisak, et al., False Allegations of Sexual Assault: An Analysis of Ten Years of Reported

26

Cases, 16(12) Violence Against Women 1318, 1330 (2010), https://icdv.idaho.gov/ conference/handouts/False-Allegations.pdf.

27

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during the speech. She also claimed that “the system established by the prior administration” was 1 2 responsible for creating “victims of a lack of due process”.44

3 101.105. Secretary DeVos also expressed doubt about the seriousness of sexual harassment

4 claims, saying, “[I]f everything is harassment, then nothing is.”45 This statement, among other

5 things, minimizes the full range of sexual harassment and its impact on women and girls,

6 including deprivation of their access to education.

7

102.106. 8

Secretary DeVos’s and Ms. Jackson’s statements are consistent with and reveal

9 their discriminatory belief, based on gender stereotypes, that many girls and women who report

10 sexual harassment misunderstood a harmless romantic advance and that those who report sexual

11 violence often are either lying or have regret about a consensual sexual encounter.

12 103.107.

Other politically appointed Department of Education officials have similar doubts

13 about the veracity of sexual harassment and violence claims. For example, Adam Kissel,
14 previously Deputy Assistant Secretary for Higher Education Programs, has criticized affirmative
15
consent policies adopted on college campuses through his Twitter accountaccounting, stating in 16

17 February 2017, “The that “[t]he new OCR [Office of Civil Rights, Department of Education] will

18 start to fix this.” Mr. Kissel has also criticized the “preponderance of evidence” standard

19 because it will lead, in his view, to “more guilty verdicts,” apparently referring to campus

20 findings of responsibility. He has also criticized antidiscrimination policies preventing sexual

21 harassment.

22 104.108.
23

This discriminatory mindset not only has motivated decisionmakers at the

Department; it flows from the top of the Executive Branch. President Trump’s actions and 24

25

26 44 DeVos Remarks. 27 45 DeVos Remarks.

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statements reveal his discriminatory and stereotyped views of women, and particularly women’s 1 2 veracity regarding claims of sexual harassment, including violence. For example, during his

3 campaign for President, Donald Trump called women who have made accusations of sexual

4 harassment and assault against him “phony accusers” who have made such reports to get “some

5 free fame.” He has called sexual harassment reports against him by women “a total setup” and

6 the women who made those reports, “horrible.”46

7

105.109. 8

Mr. Trump has bragged about sexually assaulting women on audiotape, but

9 continues to deny the experiences of women and girls who have experienced sexual assault. He

10 asserted that “every woman lied when they came forward”…” regarding alleged sexual

11 harassment by him, and that all of the women “liars will be sued after the election is over.” 47

12 106.110.

This discriminatory and stereotyped view of women and girls has become de facto

13 White House policy, as the White House has asserted in an official statement that at least 16

14 women who had accused the President of sexual harassment were lying.48
15

107.111. 16

The Administration’s disbelief of women and girls and disregard for gender-based

17 violence is also evident from the employment of multiple White House staff members who have

18 been accused of abusing their female partners. It has been widely reported that now-former

19 White House staff secretary Rob Porter was elevated within the White House despite law

20

21 46 Ryan T. Beckwith, Read Donald Trump’s Speech Attacking His Accusers, TIME, Oct. 14,

22 2016, http://time.com/4532181/donald-trump-north-carolina-accusers-speech-transcript/.

47 Ben Jacobs, Trump Uses Gettysburg Address to Threaten to Sue Sex Assault Accusers, The 23 Guardian, Oct. 22, 2016, https://www.theguardian.com/us-news/2016/oct/22/donald-trump-

24 gettysburg-contract-with-america-sue-accusers-hillary-clinton. 48 John Wagner, All of the Women Who Have Accused Trump of Sexual Harassment Are Lying,
25 the White House Says, Wash. Post, Oct. 27, 2017, https://www.washingtonpost.com/news/post-

26

politics/wp/2017/10/27/all-of-the-women-who-have-accused-trump-of-sexual-harassment-arelying-the-white-house-says/?utm_term=.79b67a7a3a2b.

27

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enforcement investigations concerning multiple reports of his abuse of women.49 After the 1 2 reports of Mr. Porter’s abuse were made public, President Trump has defended Mr. Porter, and

3 White House Chief of Staff John Kelly stated that Mr. Porter is a man of “integrity.” Mr.

4 Porter’s resignation was followed by the resignation of another senior White House official,

5 David Sorensen, who also has been accused of gender-based violence.

6 108.112.

Following these resignations, President Trump issued a statement in the form of a

7

tweet: “Peoples [sic] lives are being shattered and destroyed by a mere allegation,” he wrote. 8

9 “There is no recovery for someone falsely accused—life and career are gone. Is there no

10 such thing any longer as Due Process?”50

11 109.113. More recently, President Trump mocked Christine Blasey Ford, who accused

12 now-Justice Brett Kavanaugh of sexual assault. In a speech in Mississippi, Trump questioned Dr.
13 Ford’s recollection of the incident, which she reports occurred several decades ago. Later, the
14 President confirmed that he doubted Dr. Ford’s report of sexual assault, saying “I was just saying
15 she didn’t seem to know anything.”51
16

17

18

19

20 49 Mr. Porter’s reported abuse of women is well documented; in 2010, a court issued a protective
21 order against him, finding “reasonable grounds” to believe that Mr. Porter committed domestic

22

abuse towards his wife at the time, Jennifer Willoughby, and “probable danger” of the abuse occurring. Reports and evidence concerning Mr. Porter’s abuse of women are among the things

23 that prevented Mr. Porter from obtaining a permanent security clearance.

24

50 Donald Trump (@realDonaldTrump), Twitter (Feb. 10, 2018), https://twitter.com/ realDonaldTrump/status/962348831789797381.

25 51 Alex Johnson, Trump Defends Mockery of Christine Blasey Ford, Says It Got Kavanaugh

26

Confirmed, NBC News, Oct. 15, 2018, https://www.nbcnews.com/politics/donald-trump/trumpdefends-mockery-christine-blasey-ford-says-it-got-kavanaugh-n919986.

27

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110.114. 1

President Trump also claimed that two women who confronted Senator Jeff Flake

2 in an elevator with stories of their own sexual assaults during now-Justice Kavanaugh’s

3 confirmation hearings were “paid professionals.”52

4 111.115.

On October 2, 2018, President Trump again addressed Dr. Ford’s allegations that

5 now-Justice Kavanaugh sexually assaulted her, calling it “a very scary time for young men in

6 America.” He added that “[w]omen are doing great.”53

7

112.116. 8

The Trump Administration’s animus towards women gives license to and

9 encourages Executive branch decisionmakers who share the same discriminatory views to

10 perpetuate those views in their work.

11 113.117. The Department’s revised Title IX policyPolicy, described in detail in the

12 paragraphs that follow, was motivated by discriminatory and unfounded stereotypes about the
13 women and girls who come forward to report sexual assault and harassment. Consistent with this 14
view, the new policy removes protections for survivors, the majority of whom are female, and 15
does so in order to make it more difficult for these women and girls to obtain relief via a school’s 16
17 Title IX process and to discourage them from making Title IX reports to their schools in the first

18 place.

19

20

21

22

23

24

52 Donald Trump (@realDonaldTrump), Twitter (Oct. 5, 2018), https://twitter.com/realDonaldTrump/status/1048196883464818688.

25 53 Luke Barnes, Trump Says It’s A ‘Very Scary Time for Young Men’, ThinkProgress, Oct. 2,

26

2018, https://thinkprogress.org/trump-kavanaugh-very-scary-time-for-young-men-in-americae8ed567bc365/.

27

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1 2 114.118.

2017 Title IX Policy On September 22, 2017, the Department issued a new Dear Colleague Letter

3 (“2017 Dear Colleague Letter”), rescinding the 2011 Dear Colleague Letter and 2014 Q&A.54

4 The 2017 Dear Colleague Letter also provides new information about how the Department will

5 assess an educational institution’s compliance with Title IX through a set of Questions and
6 Answers.55 Together, these documents set forth the Department’s revised Title IX policyPolicy
7 (“2017 Title IX Policy”). This Policy is made binding on recipients of federal funding through
8
9 the assurances.

10 115.119.

The 2017 Title IX Policy departs dramatically from the 2011 and 2014 guidance

11 documents. The 2017 Title IX Policy does not simply rescind the 2011 Dear Colleague Letter

12 and 2014 Q&A. Instead, it affirmatively contradicts Department policies that the 2017 Title IX

13 Policy supposedly kept in effect, including the 2001 Guidance.

14 116.120.
15

The 2017 Title IX Policy, among other changes from existing law, imposes the

following requirements on schools that weaken protections for sexual harassment survivors: 16

17

x

prohibits educational institutions from issuing interim measures that benefit

18 complainants by minimizing the burden on these students, such as modifications to their work

19 and class schedules or to housing assignments, thereby increasing the risk that survivors of

20 sexual harassment are isolated from their support networks in the aftermath of their experience,

21 see 2017 Q&A at 3;

22

x

requires educational institutions issuing interim measures to provide such

23

24 measures to both parties or not at all, thereby burdening survivors and increasing the risk that

25

26 54 See 2017 Dear Colleague Letter. 27 55 See 2017 Q&A.

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survivors of sexual harassment are isolated from their support networks in the aftermath of their 1 2 experience and impeded in their ongoing access to educational benefits and opportunities, see

3 id.;

4

x

requires educational institutions to consider the impact of disciplinary sanctions

5 on a perpetrator’s access to education, even after finding the individual responsible for sexual

6

harassment or violence and without regard to the survivor’s access to education, id. at 6;

7

x

eliminates the requirement that educational institutions consider the effect of off-

8

9 campus conduct that does not involve a program or activity of the institution in determining

10 whether there is a hostile environment, id. at 1, n. 3.

11

x

eliminates the requirement that educational institutions provide appellate rights to

12 both parties, if they are provided at all, and instead permits institutions to provide appellate rights

13 only to the alleged perpetrator, id. at 6-7;

14

x

permits educational institutions not to provide interim measures to protect victims

15

16 of sexual harassment, including sexual violence from further harassment or violence during the

17 investigation into their complaint, see at 2-3;

18

x

does not require educational institutions to timely resolve reports of sexual

19 harassment, including sexual violence, id. at 3;

20

x

permits educational institutions to resolve claims of sexual assault through

21

mediation if both parties consent, notwithstanding, among other concerns, the likelihood that 22

23 even mediation which is agreed to may retraumatize the victim, see id. at 4;56

24

25 56 See also Anne Lawton, The Emperor’s New Clothes: How the Academy Deals with Sexual

26

Harassment, 11 Yale J.L. & Feminism 75, 130 (1999) (“[E]ven voluntary mediation can be coercive.”); Grace Watkins, Sexual Assault Survivor to Betsy DeVos: Mediation is Not a Viable

27 Resolution, TIME (, Oct. 2, 2017),, http://time.com/4957837/campussexual-assault-mediation/.

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1

x

permits educational institutions to use the “clear and convincing evidence” burden

2 of proof in adjudicating claims of sexual harassment, including sexual violence, rather than the

3 equitable standard of “preponderance of evidence,” id. at 5;

4

x

eliminates the caution against educational institutions relying on criminal

5 investigations as a substitute for their own independent investigations and determinations

6

regarding complaints of sexual harassment, including sexual violence, cf. 2014 Q&A at 27;

7

8

x

eliminates the prohibition on permitting an alleged perpetrator to question a

9 complainant’s sexual history with individuals other than the alleged perpetrator, cf. id. at 31;

10

x

eliminates the prohibition on educational institutions treating a current or previous

11 consensual dating or sexual relationship between parties as implying consent or precluding a

12 filing of sexual violence, cf. id. at 31;

13

x

fails to provide instructions on how to respond when a complainant requests

14

confidentiality or requests that no investigation or disciplinary action be pursued, cf. id. at 18-22; 15

16 and

17

x

eliminates the strong discouragement to educational institutions from permitting

18 alleged perpetrators to directly cross-examine complainants to avoid the perpetuation of a hostile

19 environment, cf. id.

20 117.121.

The 2017 Title IX Policy definitively changes expectations and mandates for

21

recipient institutions, including the expectationsthose outlined in the longstanding 2001 22

23 Guidance, which was the product of notice and comment procedures (unlike the 2017 Title IX

24 Policy) and remains in effect. For example, the 2001 Guidance stated that in “alleged sexual

25 violence, mediation will not be appropriate even on a voluntary basis,” 2001 Guidance at 21,

26

27

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while the 2017 Title IX Policy permits explicitly permits mediation in all cases where the parties 1 2 consent. 2017 Q&A at 4.

3 118.122. The 2017 Title IX Policy also sets forth expectations and mandates on educational

4 institutions that are inconsistent with the statutory text of Title IX and its implementing
5 regulations, including, but not limited to, the following: providing for one-sided appellate rights 6
favoring the accused; permitting schools to adopt a higher burden of proof—clear and 7
convincing evidence—for adjudicating complaints of sexual harassment, including sexual 8 9 violence; considering the impact that particular sanctions would have on a perpetrator’s access to
10 education after being found responsible for sexual harassment, including sexual violence, under

11 Title IX; and departing from prior policy requiring interim measures be issued to promptly

12 remedy the hostile environment for the complainant of sexual harassment.

13 119.123.

Ironically, Defendants issued the 2017 Title IX Policy and rescinded the 2011 and

14 2014 guidance documents without any opportunity for public notice and comment on the new
15
policy despite stating that the “era of rule by letter is over.” 57 The Department stated that it 16

17 would “craft a new Title IX regulation” after a period of notice and comment.58 Yet, more than a

18 year later, the Department has not done so. (An apparently leaked draft of a proposed regulation

19 was reported on last month, but the Department has not made the proposed regulation public). In

20 promulgating the 2017 Title IX Policy, Defendants failed to provide reasoned justifications for
21 the abrupt reversal in policy—and frequently failed to acknowledge the reversal in policy.
22

23

24
25 57 Press Release, U.S. Dep’t of Educ., Dep’t of Educ. Issues New Interim Guidance on Campus Sexual Misconduct, (Sept. 22, 2017), https://www.ed.gov/news/press-releases/department-
26 education-issues-new-interim-guidance-campus-sexual-misconduct.
27 58 Id.

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120.124. 1

In promulgating the 2017 Title IX Policy, Defendants relied on multiple errors of

2 fact and law, underscoring that the Department’s policy reversal is based not on reasoned

3 justifications, but on discriminatory views of women and girls who allege sexual harassment.

4 Among these errors, the 2017 Dear Colleague letter makes several claims about the effects of the
5 rescinded guidance, stating, for example, that it had “led to the deprivation of rights for many 6
students—both the accused students denied fair process and victims denied an adequate 7
resolution of their complaints.” 2017 Dear Colleague Letter at 1-2. On the contrary, the prior 8 9 policy did not require schools to limit due process or basic fairness protections for alleged
10 perpetrators. While there are anecdotes of schools making errors in providing these procedural

11 protections, such errors were neither required by, nor the result of, the 2011 and 2014 guidance

12 documents.

13 121.125.

The 2011 and 2014 guidance documents clarified the requirements that Title IX

14 imposes on educational institutions to respond to complaints of sexual harassment and the
15

protections it requires for complainants. As such, they empowered students to make complaints 16

17 of sexual harassment, including sexual violence through campus complaint processes. The 2017

18 Title IX Policy does not acknowledge or otherwise account for the reliance interests that

19 students, or organizations that work with students, have in these protections. A student who filed

20 a complaint regarding sexual violence before the issuance of the 2017 Title IX Policy would
21 have been assured that her educational institution should resolve the investigation within about
22 sixty days, and among other protections, she would not be cross-examined by the person who
23 allegedly assaulted her. For those students whose complaints were pending in the fall of 2017, no
24
25 such assurances remain.

26

27

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122.126. 1

The 2017 Title IX Policy’s retrenchment on Title IX protections for victims of

2 sexual harassment, including sexual violence, in educational institutions was motivated by

3 stereotypical assumptions and overbroad generalizations about girls and women. Limiting Title

4 IX’s protections disproportionately impacts female students, a fact which motivated
5 decisionmakers. Specifically, decisionmakers at the Department hold the discriminatory views, 6
as evidenced by Secretary DeVos’s and Ms. Jackson’s statements and coordination with others 7
who hold the same views, that (1) many girls and women who report sexual harassment, 8 9 including sexual violence, have misunderstood a harmless romantic advance and (2) most girls
10 and women who report sexual violence either are lying or have regret about a consensual sexual

11 encounters. By reducing protections for survivors, in the Department’s view, they would reduce

12 and discourage women and girls from making such reports of their sexual assaults, reports that

13 Department decisionmakers tend not to believe.

14 The Devastating Effects of the Department’s 2017 Title IX Policy
15

123.127. 16

The 2017 Title IX Policy curtails important protections against sexual harassment.

17 This rollback has had devastating effects on students’ equal access to educational opportunity,

18 which is all too often thwarted on the basis of their sex.

19 124.128. Following the issuance of the 2017 Title IX Policy, schools have modified and/or

20 stated their intention to modify their practices. For example, in the weeks following the issuance
21 of the 2017 Title IX Policy, the South Dakota Board of Regents proposed “emergency revisions”
22 to its Title IX policyPolicy that “were required to comply with the Interim Guidance [i.e., 2017
23 Title IX Policy] issued on September 22, 2017.”59 The Board identified “revisions … to comply
24

25

26

59 South Dakota Board of Regents, Minutes of the Meeting, Oct. 3-5, 2017, at 20, https://www.sdbor.edu/the-board/minutes/Documents/BOR_Minutes_102017.pdf

27

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with the requirements contained in the Interim Guidance.”60 It ultimately made a host of 1 2 changes to its policy to “align with” and “follow[]” the Interim Guidance. 61 The changes made

3 by South Dakota Board of Regents include, among others, modifications to its policy on interim

4 measures, sanctions, and mediation to “explicitly incorporate language contained in the interim
5 guidance.”62 As another example, following issuance of the 2017 Title IX Policy and after the 6
Department closed an investigation into the handling of campus sexual violence at the University 7
of Houston, the university’s spokesman stated that, in light of the current guidance, the 8 9 university may make some changes to how it adjudicates sexual misconduct violations to “better
10 align with the [Department of Education’s] expectations to how we ensure due process.”63 In

11 addition, the University of Michigan has changed its Title IX policyPolicy to adopt the option of

12 mediation between an accused student and a survivor in cases of sexual assault. This new 13

14

15

16 60 South Dakota Board of Regents, Title IX Interim Guidance, Oct. 3-5, 2017, at 1,
17 https://www.sdbor.edu/theboard/agendaitems/2014AgendaItems/2017%20Agenda%20Items/October0317/5_O_BOR1017.
18 pdf.

19 61 South Dakota Board of Regents, Minutes of the Meeting, Dec. 5-7, 2017, at 30, https://www.sdbor.edu/the-board/minutes/Documents/BOR_Minutes_1217_DRAFT.pdf

20 62 South Dakota Board of Regents, Title IX Interim Guidance, Revisions to Board Policies, Dec.

21 5-7, 2017, at 1, https://www.sdbor.edu/theboard/agendaitems/2014AgendaItems/2017%20Agenda%20Items/December17/7_E_BOR1217_

22 REVISED.pdf; see also Danielle Ferguson, South Dakota Board of Regents Passes Interim Title

IX Sexual Assault Guidelines, Argus Leader, Dec. 7, 2017, http://www.argusleader.com/ 23 story/news/2017/12/07/regents-pass-interim-title-ix-sexual-assault-guidelines/926445001/ (South

24

Dakota State University vice president of student affairs stating that some of the changes were “substantive” but claiming that “most aren’t”).

25 63 Lindsay Ellis, Feds Close Title IX Investigation Into University of Houston, Chron, Oct. 4,

26

2017, http://www.chron.com/local/education/campus-chronicles/article/Feds-close-Title-IXinvestigation-into-University-12253555.php.

27

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University of Michigan policy resulted from the Title IX policyPolicy change.64 The University 1 2 of Kentucky has also adopted new policies regarding disciplinary procedures relating to sexual

3 assault, among which it now only permits appeals by students found responsible for sexual

4 assault, not for the survivor.65

5 125.129.

Following the issuance of the 2017 Title IX Policy, universities have also changed

6 their policies in such a way that could delay resolution of reports of sexual misconduct, including
7 sexual assault.66
8

9 126.130.

Following the issuance of the 2017 Title IX Policy, the Department has begun to

10 modify and limit its ongoing investigations and analysis of University responses to reports of

11 sexual misconduct, including sexual violence, to conform to the new Title IX policy.Policy. For

12 example, in June 2018 OCR issued a Letter of Findings against the University of North Carolina 13

14

15 64Jeremy Bauer-Wolf, Mediating Sexual Assault, Inside Higher Ed, Feb. 20, 2018, https://www.insidehighered.com/news/2018/02/20/university-michigan-will-now-allow-

16 mediation-some-sexual-assault-cases; Rick Fitzgerald, U-M Revises Student Sexual and Gender-

Based Misconduct Policy, The Univ. Record, Feb. 1, 2018, https://record.umich.edu/articles/u17 m-revises-student-sexual-gender-based-misconduct-policy (University of Michigan Public

18

Affairs Office explains that “[t]he change [regarding mediation] also reflects the most recent guidance from the U.S. Department of Education's Office for Civil Rights.”).

19 65 Jacob Eads, UK Administration Overhauls Disciplinary Policies Regarding Sexual Assault

20

Claims, Kentucky Kernel, June 20, 2018, http://www.kykernel.com/news/uk-administrationoverhauls-disciplinary-policies-regarding-sexual-assault-claims/article_d9808d74-74c2-11e8-

21 8509-67e774e9238c.html.

66 Press Release, Grand Valley State Univ., Update on the Impact of Interim Q&A Related to 22 Title IX (Oct. 2, 2017), https://www.gvsu.edu/inclusion/module-news-

23 view.htm?storyId=B4C32E26-0CC1-44BC-CCF964C4D07C10C3&siteModuleId=6D5DCE61CC95-4B12-A9C94F3632A6F3DD (Grand Valley State University announcing it will remove

24 its 60-day time frame for investigations.); Kara Coleman, Auburn University Re-Evaluating Title

IX Policies and Procedures, Feb. 9, 2018, www.oanow.com/news/auburnuniversity/auburn25 university-re-evaluating-title-ix-policies-and-procedures/article_16b90e14-ecf7-507c-a390-

26

85c0ad88e538.html (Auburn University removed its 60-day time frame sometime “before Christmas” and now allows for “reasonable time,” which can be “three or four months.”).

27

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(“UNC”) stating that UNC’s sexual harassment policy was not equitable because it did not allow 1 2 for both parties to appeal.67 Questioned about how this finding was consistent with the new

3 Policy, “Department spokeswoman Liz Hill said that OCR is in the process of correcting its

4 correspondence with the university to let it know [UNC’s] policy is consistent with the
5 department’s temporary rules.”68 But for the new Policy, UNC would have remained subject to a 6
finding of noncompliance for the unequal appeal rights it permits, and would have been required 7
to change its practices through a binding Resolution Agreement. Now, due solely to the new 8 9 Policy, UNC need not enter into a legally-enforceable agreement with OCR or be subject to a
10 proceeding seeking to withdrawal of federal funds.The Department subsequently modified its

11 Letter of Findings with the university in order to align this enforcement action with its guidance

12 in the 2017 Title IX Policy permitting unequal appeal rights when provided to the responding

13 party.69

14 127.131.
15

Following the issuance of the 2017 Title IX Policy, numerous individuals who

have been the subject of sexual violence or harassment have expressed to the Plaintiffs a 16

17

18 67 Compl. Ltr. and Resolution Agreement, UNC & OCR (June 2018), https://www.unc.edu/wp-
19 content/uploads/2018/06/FINAL-R-LOF-UNC-Chapel-Hill-11132051-PDF-1.pdf. ED seems to

20

no longer be publishing resolution agreements as a matter of course. None appear on its website post-dating the 2017 Title IX Policy, making it difficult to find additional examples.

21 68 Jeremy Bauer-Wolf, The “Confusing” Case of UNC’s Title IX Violations, Inside Higher Ed, (June 27, 2018),, https://www.insidehighered.com/news/2018/06/27/unc-found-have-violated-
22 title-ix-multiyear-investigation.

23 69 Compare U.S. Dep’t of Educ., OCR Complaint No. 11-13-2051 Letter of Findings, at 10 (June
25, 2018), https://www.unc.edu/wp-content/uploads/2018/06/FINAL-R-LOF-UNC-Chapel-Hill24 11132051-PDF-1.pdf (determining that the university’s policy providing an appeal only to one
25 party “is not equitable”), with U.S. Dep’t of Educ., OCR Complaint No. 11-13-2051 Amended Letter of Findings, at 1 n.1 (June 28, 2018), https://www.unc.edu/wp-
26 content/uploads/2018/07/FINAL-AMENDED-R-LOF-UNC-Chapel-Hill-11132051PDF_Redacted.pdf (amending prior Letter of Findings to “clarif[y]” that educational institutions
27 “may choose to allow an appeal . . . solely by the respondent or responding party . . . ”).

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hesitance or unwillingness to report their incidents to their school authorities, citing the 1 2 Department’s 2017 Title IX Policy as the reason for their hesitation or unwillingness.

3 128.132. These devastating consequences have overwhelmingly and disproportionately

4 harmed women and girls, among other populations that are disproportionately likely to be

5 targeted for sexual harassment and violence.

6 129.133.

As outlined more fully in paragraphs 10-34, the consequences of the

7

Department’s 2017 Title IX Policy have harmed and continue to harm Plaintiffs. Indeed, 8

9 Plaintiffs are organizations that assist and counsel survivors of sexual harassment, including

10 sexual violence. As a result of the chilling effect that the Department’s change in policy has had

11 and continues to have on reporting sexual assault and other forms of sexual harassment,

12 Plaintiffs are unable to meet their missions of serving survivors of sexual violence and other

13 forms of sexual harassment. Further, Plaintiffs have had to expend resources over and above
14 normal levels to combat underreporting that has resulted from the Department’s change in
15
policy, causing a diversion of resources away from their other core programmatic activities. 16

17 130.134.

The effects of the 2017 Title IX Policy have also required Plaintiffs to expend

18 resources over and above their normal levels to combat confusion among survivors and

19 educational institutions and to educate both on the requirements of Title IX’s antidiscrimination

20 provisions. These resource expenditures have taken away from Plaintiffs’ other core

21 programmatic activities, causing a diversion of resources.

22

Plaintiff Organizations’ Relationship to Female Survivors of Sexual Violence and Barriers

23

Those Women and Girls Face to Pursuing Federal Litigation to Challenge the

Discriminatory 2017 Policy 24

25 131. Plaintiff organizations have a close relationship with the women and girls they serve.

26 Each organization has attorney-client relationships with women and girl students who they

27

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represent in Title IX proceedings before schools. 1 2 As set forth above in paragraphs 10-34, Plaintiffs’ missions are aligned with advancing
3 the interests of survivors of sexual harassment and assault, most of whom are women and girls,
4 and protecting their clients, survivors of sexual harassment and assault, from discriminatory 5 treatment in their schools’ Title IX processes. In addition to the legal services they provide to 6
their clients, Plaintiffs’ other work reveals the alignment of their interests with those of 7
survivors. 8 9 132. For example, SurvJustice provides training to schools to prevent and address sexual and 10 gender-based violence to ensure compliance with federal law, enforcement of victim rights, and
11 development of a culture that supports survivors and encourages sexual respect. SurvJustice also
12 engages in policy advocacy to promote robust protections for survivors and to dispel rape myths 13 about women and girls like those advocated by Ms. Jackson in her statement to the New York 14
Times. 15
132. VRLC provides trainings to lawyers, advocates, and educators regarding sexual violence 16 17 on college campuses, including providing up to date research on who victims are, who 18 perpetrators are, how sexual violence is committed on campus, and on campus best practices to
19 prevent and respond to sexual violence.
20 132. ERA’s mission is to fight for women’s equality and combat gender discrimination in 21
education and employment, and it pursues this mission on behalf of students who have been 22
sexually harassed and assaulted. In addition to providing direct legal assistance, including free 23
advice and counseling, to such individuals, ERA represents them in litigation against schools, 24 25 school districts, and universities. ERA also files amicus briefs in cases involving the
26 interpretation and enforcement of anti-discrimination and other civil rights laws; provides
27
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technical assistance and serves as a consultant to other attorneys representing women and girls in 1 2 Title IX cases and related civil litigation; connects victims of sexual harassment, including
3 sexual violence, to pro bono or other private attorneys; publishes and amplifies communications
4 in which women and girls use their voices to advocate on issues related to gender justice; 5 partners with student activists and leaders to conduct outreach and education to promote gender 6
equity and awareness of Title IX-related rights in schools; and advocates for policies that 7
promote gender equity in education at the local, state, and federal level, including policies that 8 9 protect full and equal access to education for victims of sexual assault and harassment. 10 133. Individual women and girls affected by the discriminatory 2017 Title IX Policy face
11 barriers to bringing litigation on their own behalf to challenge the Policy as discriminatory.
12 The desire to maintain confidentiality is a significant barrier to students bringing a federal 13 lawsuit to challenge the discriminatory Policy. Women and girls considering reporting sexual 14
assault and harassment do so at the risk of having their sexual assault or harassment made public, 15
an experience which many prefer to keep private and which still carries significant social stigma. 16 17 Each organization has observed its clients wrestling with whether to report an experience of 18 sexual assault or harassment against the risk of loss of confidentiality; many women and girls
19 ultimately decide not to make such reports in favor of not losing their privacy. Pursuing federal
20 litigation creates just as much, if not more, risk of publicity. 21
134. The loss of confidentiality also carries practical concerns for students. For example, 22
VRLC clients have expressed concerns about the impact on their future career prospects if they 23
bring complaints forward at their institution, much less in a federal court. This concern is 24 25 especially true for those graduate students and PhD candidates who have been harassed or
26 assaulted by individuals who are powerful within their field. Coupled with the safety concerns,
27
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the implication of having a future employer know they have been sexually assaulted, resulting 1 2 from lost confidentiality following reporting, plus the potential for retaliation or stalking, victims
3 are often placed in an untenable position of choosing between fighting for their rights in the
4 present and navigating career implications for their future. 5 135. The possibility of retraumatization is also a barrier to many students in bringing a federal 6
case to challenge the discriminatory Policy. SurvJustice and ERA have observed their clients 7
being retraumatized by schools’ hostile, retaliatory, and dilatory responses to their reports of 8 9 sexual violence, which have grown more common in the wake of the 2017 Title IX policy. In 10 particular, ERA has observed institutional responses, which include but are not limited to long
11 delays in initiating and/or completing investigations, victim-blaming investigation tactics,
12 reversals of the role of victim and offender through, e.g., automatically issuing and enforcing 13 mutual no-contact orders against students who report sexual assault and encouraging or 14
facilitating facially retaliatory counter-complaints by respondents against victims, compound the 15
trauma caused by being sexually assaulted. Plaintiffs’ clients would face the prospect of further 16 17 re-traumatization by participation in a federal lawsuit. 18 Participation in a federal lawsuit raises safety concerns for women and girl survivors of
19 sexual assault and harassment. Each organization has clients who have experienced retaliation
20 after reporting sexual assault or harassment, either by their assailant or by third-parties (such as 21
peers, coaches, or professors), and clients who have experienced post-reporting stalking or other 22
harassment by the assailant. All three Plaintiffs have observed that no-contact orders are 23
frequently insufficient to protect survivors’ safety and/or are ignored at an institutional level. 24 25 ERA also has observed an increase in the frequency of institutions making no-contact orders
26 mutual, thereby automatically subjecting students who report sexual assault to restrictions on
27
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their movement and access to educational programs, privileges, and activities and making 1 2 complainants subject to discipline for otherwise permissible conduct. Inadequate responses by
3 schools to students’ reports of sexual harassment and assault have led SurvJustice’s clients to
4 believe that their experiences were not taken seriously and that their safety is not important. 5 Individual participation in a federal lawsuit with its attendant spotlight—on the assailant and the 6
school—would exacerbate these safety risks by creating additional motivation to retaliate. 7
Fear of retaliation is also a barrier against pursuing federal litigation to challenge the 8 9 discriminatory Policy. Many of the Plaintiff organizations’ clients remain students at the schools 10 where they were assaulted. These students have been subject to retaliation, not only from the
11 harasser, but from the school itself. For example, VRLC has observed students encountering
12 barriers to accessing appropriate classes for an on-time graduation and additional procedural 13 requirements for graduation, such as meeting with a new “advisor.” SurvJustice’s clients have 14
also expressed fear of being retaliated against for going public with their experience of sexual 15
assault and harassment. Becoming a named plaintiff in a federal lawsuit would likely exacerbate 16 17 those retaliatory responses if the portrayal of the school’s Title IX process in the lawsuit was 18 critical.
19 137. In addition, Plaintiffs have observed practical and procedural barriers to individual
20 students being able to bring a constitutional claim or effectively vindicate their constitutional 21
rights through a lawsuit challenging the 2017 Title IX Policy. The student’s claim as to the 22
Department’s Policy likely would not be ripe until after she had been sexually assaulted and 23
proceeded through the campus Title IX process to completion. Even if she had not graduated by 24 25 the time the campus Title IX process concluded, it is extremely likely that she would have
26 graduated (or been pushed out of school) by the time she could obtain relief in a federal lawsuit,
27
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making any requests for relief practically – if not legally – moot. 1

2

ClaimsClaim for Relief

3

Count One

4

(Violation of the Equal Protection Guarantee of the Fifth AmendmentAdministrative

5

Procedure Act, 5 U.S.C. § 706)

6 138.135.

Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth

7 herein.

8 139. The Due Process Clause of the Fifth Amendment to the United States Constitution
9 forbids the federal government from denying equal protection of the laws, including by 10
discriminating on the basis of sex. 11
140. In issuing the 2017 Title IX Policy, Defendants were motivated, at least in part, by their 12
13 discriminatory—and baseless—gender stereotype that many women and girls lack credibility
14 with regard to sexual harassment and assault. Such stereotype includes the perception that

15 women and girls who report sexual harassment misunderstood a harmless romantic advance and

16 that those who report sexual violence are often either lying or have regret about a consensual
17 sexual encounter.
18 141. The statements and actions of Secretary DeVos and Ms. Jackson, as well as the
19 circumstances under which the 2017 Title IX Policy change was issued, further demonstrate that
20
21 Defendants issued the 2017 Title IX Policy knowing it would have a disparate impact on women,

22 who constitute the overwhelming majority of sexual harassment and assault survivors, by

23 reducing federal protections for victims of sexual harassment and assault. They took this action
24 not despite this impact on women, but because of it.
25 142. Defendants, in issuing the 2017 Title IX Policy based on gender stereotyped
26 assumptions—as evidenced by decisionmakers’ statements and reliance on and solicitation of
27

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input from groups espousing those very assumptions, departing from normal agency processes, 1 2 acting with the knowledge that the policy would disproportionately impact female students, and 3 motivated by that disproportionate impact—discriminated on the basis of sex in violation of the
4 Due Process Clause of the Fifth Amendment. 5 136. The Administrative Procedure Act (“APA”) empowers this Court to set aside agency 6
action that is arbitrary, capricious, or contrary to law. It also requires an agency to provide a 7
sufficient explanation for its actions and empowers this Court to set aside actions that were 8 9 undertaken without observance of procedure required by law. 10 137. The 2017 Title IX Policy is the Department’s current policy for interpreting and
11 enforcing Title IX; it contains expectations and mandates for recipients that represent a shift 12 away from prior policy. Although labeled as interim, the 2017 Title IX Policy is final agency 13 action for the purposes of the APA because it represents a conclusive shift in Department policy 14
that governs the enforcement and interpretation of Title IX and because it has no definite 15
termination date. Schools that receive Department funding are expected and obliged to comply 16 17 with the Policy in part based on the assurances of compliance they sign in order to receive such 18 funding.
19 138. By issuing the 2017 Title IX Policy, the Defendants have adopted a policy that is 20 arbitrary, capricious, and contrary to law. 21
22
23
24
25
26
27
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139. Among other particulars, the 2017 Title IX policy arbitrarily and without reasoned 1 2 explanation eliminates protections designed to prevent a discriminatory educational environment.

3 It does so, for example, by permitting the use of mediation to resolve claims of sexual assault,

4 which is not only arbitrary and unexplained, but also directly contradicts the Department’s 2001
5 Guidance. It also fails to consider the reliance interests that students have in the continuation of 6
those protections. 7
140. In addition, the 2017 Title IX policy fails to articulate an adequate reason for, or in some 8 9 cases even acknowledge, its departure from prior guidance documents and other Department
10 interpretations of Title IX and its implementing regulations, including the 2014 Q&A, 2011 Dear

11 Colleague Letter, and 2001 Guidance.

12 141. Defendants’ proffered explanation for issuing the Policy is based upon mistakes of fact
13 and law. 14
142. Defendants also acted in an arbitrary and capricious manner by implementing their 2017 15
Title IX policy without following the procedures required by law. 16
17 143. As a result of Defendants’ unlawful actions, Plaintiffs have been harmed and their

18 missions frustrated, as outlined more fully in paragraphs 10-3411-35 above.

19

Count Two

20

(Ultra Vires Action)70

21 Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth herein.
22 144. This Court has the power to set aside actions by the Executive Branch that are ultra vires
23

24 (i.e., without legal authority).

25

26 70 Plaintiffs are not alleging additional facts in support of their ultra vires claim, but maintain it 27 for the purpose of appeal, if necessary.

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145. In adopting the 2017 Title IX policy and permitting recipients of federal funding to adopt 1 2 policies that disadvantage victims of sexual harassment, including sexual violence, and benefit

3 the alleged perpetrators, such as by permitting educational institutions to provide one-sided

4 appellate rights, and in considering factors unrelated to Title IX’s mandate in doing so, 5 Defendants have acted in excess of their legal authority. 6

7 WHEREFORE, Plaintiffs pray that this Court:

8

1. Declare the Dear Colleague Letter and the Q&A issued in September 2017 unlawful;

9

2. Issue an injunction ordering Defendants to vacate the Dear Colleague Letter and the

10 Q&A issued in September 2017;
11
3. Award Plaintiffs costs, attorneys’ fees, and other disbursements for this action; and 12

13

4. Grant any other relief this Court deems appropriate.

14 DEMAND FOR JURY TRIAL.

15 Respectfully submitted,
16 18, 2018

Date: October 31April

17 /s/ Robin F. Thurston Alice Y. Abrokwa*
18 Leecia Welch (CA Bar No. 208741)
Alice Y. Abrokwa* 19 Seth Galanter*
20 National Center for Youth Law 405 14th Street, 15th Floor
21 Oakland, CA 94612, and 1313 L Street, NW, Suite 130
22 Washington, DC 20005
Ph: (510) 835-8098 23 Fax: (510) 835-8099
24 Emails: lwelch@youthlaw.org, sgalanter@youthlaw.com, aabrokwa@youthlaw.org

25 Jennifer A. Reisch (CA Bar No. 223671) Equal Rights Advocates
26 1170 Market Street, Suite 700
27 San Francisco, CA 94102

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Case 3:18-cv-00535-JSC Document 123-1 Filed 04/18/19 Page 59 of 59

Ph: (415) 896-0672 1 Fax: (415) 231-0011 2 Email: jreish@equalrightsadvocates.org

3 Javier M. Guzman*

Robin Thurston* 4 Karianne Jones*

5

Democracy Forward Foundation 1333 H St. NW

6 Washington, DC 20005 Ph: (202) 448-9090

7 Fax: (202) 701-1775

Emails: jguzman@democracyforward.org, rthurston@democracyforward.org, 8 kjones@democracyforward.org

9 Emily Martin*

10 Neena Chaudhry* Sunu Chandy*

11 National Women’s Law Center

11 Dupont Circle, NW, Suite 800 12 Washington, DC 20036

13

Ph: (202) 588-5180 Fax: (202) 588-5185

14 Emails: emartin@nwlc.org, nchaudhry@nwlc.org, etang@nwlc.org, schandy@nwlc.org,

15 *Admitted pro hac vice

16 Counsel for Plaintiffs 17

18

19

20

21

22

23

24

25

26

27

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 Case 3:18-cv-00535-JSC Document 149 Filed 11/01/19 Page 1 of 25

United States District Court Northern District of California

1

2

UNITED STATES DISTRICT COURT

3

NORTHERN DISTRICT OF CALIFORNIA

4

5

SURVJUSTICE INC, et al.,

6

Plaintiffs,

7

v.

8

ELISABETH DEVOS, et al.,

9

Defendants.

Case No.18-cv-00535-JSC
ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT Re: Dkt. Nos. 136, 140

10

SurvJustice, Inc., Equal Rights Advocates, and Victim Rights Law Center (“Plaintiffs”) are

11 non-profit advocacy organizations who sue for injunctive relief against the U.S. Department of

12 Education (the “Department”), Secretary Elisabeth D. DeVos, and Acting Assistant Secretary for 13 Civil Rights Kenneth L. Marcus (collectively, “Defendants”).1 Plaintiffs seek to vacate the

14 Department’s policy regarding enforcement of Title IX of the Education Amendments of 1972 set

15 forth in guidance documents the Department issued on September 22, 2017. (Dkt. No. 123 at ¶ 16 1.)2 Now before the Court are the parties’ cross motions for summary judgment. (Dkt. Nos. 136

17 & 140.) After careful consideration of the parties’ briefing and having had the benefit of oral

18 argument on October 17, 2019, the Court DENIES Plaintiffs’ motion and GRANTS Defendants’

19 motion because the challenged agency action is not “final” for purposes of judicial review under

20 the Administrative Procedure Act (“APA”), 5 U.S.C. § 706.

21

BACKGROUND

22 I. Factual Background

23

A. Title IX Generally

24

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, prohibits any

25 educational program or activity that receives federal funding from discriminating on the basis of

26

27

1 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 18 & 36.)

28

2 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents.

Case 3:18-cv-00535-JSC Document 149 Filed 11/01/19 Page 2 of 25

United States District Court Northern District of California

1 sex. 20 U.S.C. § 1681(a). Sexual harassment is a form of sex discrimination that educational

2 institutions must address and remedy under Title IX. Davis v. Monroe Cty. Bd. of Educ., 526 U.S.

3 629 (1999); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). The Department, acting

4 through its Office of Civil Rights (“OCR”), is “the administrative agency charged with

5 administering Title IX.” Neal v. Bd. of Trs. of California State Univ., 198 F.3d 763, 770 (9th Cir.

6 1999) (internal quotation marks and citation omitted). Applicants for federal funding from the

7 Department must sign an “assurance of compliance” indicating that “the education program or

8 activity operated by the applicant” will comply with Title IX and its implementing regulations. 34

9 C.F.R. § 106.4(a). Further, recipients of federal funding must “adopt and publish grievance

10 procedures providing for prompt and equitable resolution of student and employee complaints

11 alleging any action” prohibited under Title IX. 34 C.F.R. § 106.8(b).

12

B. The 2001 Guidance

13

In January 2001, OCR issued a revised guidance document titled Revised Sexual

14 Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third

15 Parties, which “reaffirm[ed] the compliance standards that OCR applies in investigations and

16 administrative enforcement of Title IX . . . regarding sexual harassment.” (Dkt. No. 136-2, Ex. A-

17 3 at 24 (“2001 Guidance”).) The 2001 Guidance largely reaffirmed the requirements and

18 guidelines established under previous guidance issued by OCR in 1997, but also “re-ground[ed]”

19 OCR’s standards “in the Title IX regulations, distinguishing them from the standards applicable to

20 private litigation for money damages and clarifying their regulatory basis as distinct from Title VII

21 of the Civil Rights Act of 1964 (Title VII) agency law.” (See id.) The stated purpose of the 2001

22 Guidance is to “provide the principles that a school should use to recognize and effectively

23 respond to sexual harassment of students in its program as a condition of receiving Federal

24 financial assistance.” (Id.) OCR issued the 2001 Guidance after publishing notice in the Federal

25 Register “requesting public comments on the proposed revised guidance.” (Id. at 25.)

26

C. The 2011 Letter and the 2014 Q&A

27

In April 2011, OCR issued a “Dear Colleague Letter on Sexual Violence,” (Dkt. No. 134-3

28 at 89-107 (“2011 Letter”)), followed by a set of questions and answers in 2014 in response to 2

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1 “additional concerns raised by schools and students,” (id. at 192-244 (“2014 Q&A”)) (together,

2 “2011 & 2014 Guidance”). The 2011 Letter reaffirmed the Title IX requirements detailed in the

3 2001 Guidance “related to student-on-student sexual harassment, including sexual violence, and . .

4 . schools’ responsibility to take immediate and effective steps to end sexual harassment and sexual

5 violence.” (Id. at 90.) The 2011 Letter also “supplement[ed] the 2001 Guidance by providing

6 additional guidance and practical examples regarding the Title IX requirements as they relate to

7 sexual violence.” (Id.)

8

The 2011 & 2014 Guidance set forth or reiterated several substantive provisions;

9 specifically: (1) requiring schools to “use a preponderance of the evidence standard (i.e., it is

10 highly probable or reasonably certain that the sexual harassment or violence occurred)”; (2)

11 requiring schools to provide an appeals process for both parties; (3) noting that voluntary

12 mediation is not appropriate “[i]n cases involving allegations of sexual assault”; (4) requiring

13 schools “to take steps to protect the complainant as necessary, including taking interim steps

14 before the final outcome of the investigation”; (5) recognizing that “a typical [sexual misconduct]

15 investigation takes approximately 60 calendar days following receipt of the complaint,” but

16 specifying that “[w]hether OCR considers an investigation to be prompt as required by Title IX

17 will vary depending on the complexity of the investigation and the severity and extent of the

18 alleged conduct”; (6) requiring schools to “process all complaints of sexual violence, regardless of

19 where the conduct occurred, to determine whether the conduct occurred in the context of an

20 education program or activity or had continuing effects on campus or in an off-campus education

21 program or activity”; (7) requiring that “[i]f a school determines that it can respect [a] student’s

22 request not to disclose his or her identity to the alleged perpetrator, it should take all reasonable

23 steps to respond to the complaint consistent with the request”; and (8) noting that “[q]uestioning

24 about the complainant’s sexual history with anyone other than the alleged perpetrator should not

25 be permitted.” (See Dkt. No. 134-3 at 31, 96, 98-99, 100, 211, 218, 227, 229, 230.)

26

D. The 2017 Guidance

27

On September 22, 2017, the Department issued a “Dear Colleague Letter” rescinding the

28 2011 & 2014 Guidance. (Dkt. No. 134-2 at 2 (“2017 Letter”).) That same day, the Department 3

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1 issued questions and answers on “Campus Sexual Misconduct.” (Id. at 4 (“2017 Q&A”).) The

2 stated purpose of the 2017 guidance documents (collectively, “2017 Guidance”) was to withdraw

3 the “new mandates” imposed by the 2011 letter and 2014 Q&A “related to the procedures by

4 which educational institutions investigate, adjudicate, and resolve allegations of student-on-

5 student sexual misconduct.” (Id. at 2.)

6

The 2017 Letter singles-out as flawed the following procedures set forth in the 2011

7 Letter: (i) requiring “schools to adopt a minimal standard of proof—the preponderance-of-the-

8 evidence standard—in administering student discipline, even though many schools had

9 traditionally employed a higher clear-and-convincing-evidence standard”; (ii) “insist[ing] that

10 schools with an appeals process allow complainants to appeal not-guilty findings, even though

11 many schools had previously followed procedures reserving appeal for accused students”; (iii)

12 “discourag[ing] cross-examination by the parties, suggesting that to recognize a right to such

13 cross-examination might violate Title IX”; (iv) “forb[idding] schools from relying on

14 investigations of criminal conduct by law-enforcement authorities to resolve Title IX complaints,

15 forcing schools to establish policing and judicial systems while at the same time directing schools

16 to resolve complaints on an expedited basis;” and (v) “provid[ing] that any due-process

17 protections afforded to accused students should not ‘unnecessarily delay’ resolving the charges

18 against them.” (Id.) The 2017 Letter notes that “[t]he Department imposed these regulatory

19 burdens without affording notice and the opportunity for public comment.” (Id. at 3.) The 2017

20 Letter continues:

21

Under these circumstances, the Department has decided to withdraw

the above-referenced guidance documents in order to develop an

22

approach to student sexual misconduct that responds to the concerns

of stakeholders and that aligns with the purpose of Title IX to achieve

23

fair access to educational benefits. The Department intends to

implement such a policy through a rulemaking process that responds

24

to public comment. The Department will not rely on the withdrawn

documents in its enforcement of Title IX. 25

26 (Id.) In the interim, the 2017 Letter directs readers to the 2017 Q&A, and states that the

27 Department “will continue to rely on [the 2001 Guidance], which was informed by a notice-and-

28 comment process,” and a 2006 Dear Colleague Letter on Sexual Harassment that reaffirmed the 4

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1 2001 Guidance. (Id.) The 2017 Q&A reiterates the Department’s intention to engage in formal

2 “rulemaking on the topic of schools’ Title IX responsibilities concerning complaints of sexual

3 misconduct,” stating, in pertinent part:

4

Under Title IX of the Education Amendments of 1972 and its

implementing regulations, an institution that receives federal funds

5

must ensure that no student suffers a deprivation of her or his access

to educational opportunities on the basis of sex. The Department of

6

Education intends to engage in rulemaking on the topic of schools’

Title IX responsibilities concerning complaints of sexual misconduct,

7

including peer-on-peer sexual harassment and sexual violence. The

Department will solicit input from stakeholders and the public during

8

that rulemaking process. In the interim, these questions and

answers—along with the [2001 Guidance] previously issued by the

9

Office of Civil Rights—provide information about how OCR will

assess a school’s compliance with Title IX. 10

11 (Id. at 4 (footnote omitted).)3

12

1. Substantive changes under the 2017 Guidance

13

In rescinding the 2011 & 2014 Guidance, the 2017 Guidance enacts eight changes. (See

14 Dkt. Nos. 136 at 11-12 & 140 at 14-15.) First, the 2017 Guidance returns to the pre-2011 policy

15 of giving schools discretion over the standard of proof it employs in evaluating evidence, 16 permitting schools to use either the “preponderance” or a “clear and convincing” standard.4 (See

17 Dkt. No. 134-2 at 8.) Second, regarding the appeals process, the 2017 Guidance allows schools to

18 “choose to allow appeal (i) solely by the responding party; or (ii) by both parties, in which case

19 any appeal procedures must be equally available to both parties.” (Id. at 10.) Third, the 2017

20 Guidance allows for voluntary informal mediation if the parties have “receiv[ed] a full disclosure

21 of the allegations and their options for formal resolution and if a school determines that the

22 particular Title IX complaint is appropriate for such a process.” (Id. at 7.)

23

Fourth, the 2017 Guidance rescinds the 2014 Q&A’s mandate that schools must take

24

25

3 The Department published in the Federal Register a notice of proposed rulemaking on November 29, 2018, indicating that it proposes to amend Title IX’s implementing regulations to clarify

26

schools’ obligations under Title IX, including how schools “must respond to incidents of sexual harassment.” See Nondiscrimination on the Basis of Sex Education Programs or Activities

27

Receiving Federal Financial Assistance, 83 Fed. Reg. 61,462 (Nov. 29, 2018). 4 The 2017 Q&A explains that “the standard of evidence for evaluating a claim of sexual

28

misconduct should be consistent with the standard the school applies in other student misconduct cases.” (Dkt. No. 134-2 at 8 n.19.)

5

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1 interim measures during the investigation of a complaint, and instead returns to the 2001

2 Guidance, which provided that schools may take such measures. (See id. at 5-6; see also Dkt. No.

3 136-2, Ex. A-3 at 47 (providing that “[i]t may be appropriate for a school to take interim measures

4 during the investigation of a complaint.”).) Fifth, the 2017 Guidance does not recognize the 2014

5 Q&A’s 60-day benchmark for “prompt” investigations in typical cases, (see Dkt. No. 134-3 at

6 229), and states instead that “[t]here is no fixed time frame under which a school must complete a

7 Title IX investigation,” (Dkt. No. 134-2 at 6). In determining whether an investigation is

8 “prompt,” the 2017 Guidance provides that “OCR will evaluate a school’s good faith effort to

9 conduct a fair, impartial investigation in a timely manner designed to provide all parties with

10 resolution.” (Id.)

11

Sixth, the 2017 Guidance addresses off-campus conduct and provides that “[s]chools are

12 responsible for redressing a hostile environment that occurs on campus even if it relates to off-

13 campus activities,” but notes that “OCR has informed institutions that a university does not have a

14 duty under Title IX to address an incident of alleged harassment where the incident occurs off-

15 campus and does not involve a program or activity of the [school].” (Dkt. No. 134-2 at 4 n.3

16 (internal quotation marks omitted) (citing OCR complaints issued prior to the 2011 & 2014

17 Guidance).) Conversely, the 2014 Q&A provided that “school[s] must process all complaints of

18 sexual violence, regardless of where the conduct occurred, to determine whether the conduct

19 occurred in the context of an education program or activity or had continuing effects on campus or

20 in an off-campus education program or activity.” (Dkt. No. 134-3 at 227.) The 2014 Q&A further

21 provided that “[e]ven if the misconduct did not occur in the context of an education program or

22 activity, a school must consider the effects of off-campus misconduct when evaluating whether is

23 hostile environment on campus or in an off-campus education program or activity.” (Id.)

24

Seventh, the 2017 Guidance provides that schools should provide notice to the accused

25 party of the “identities of the parties involved” in the complaint “[o]nce it decides to open an

26 investigation that may lead to disciplinary action.” (Dkt. No. 134-2 at 7.) This differs from the

27 2014 Q&A, which provided that “[i]f a school determines that it can respect [a] student’s request

28 not to disclose his or her identity to the alleged perpetrator, it should take all reasonable steps to 6

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1 respond to the complaint consistent with the request.”5 (Dkt. No. 134-3 at 218.) Finally, the 2017

2 Guidance appears to differ from the rescinded guidance in that it does not expressly prohibit

3 “[q]uestioning about the complainant’s sexual history with anyone other than the alleged

4 perpetrator,” which the 2014 Q&A noted “should not be permitted.” (Compare id. at 229 with

5 Dkt. No. 134-2 at 7 (noting that investigating “a Title IX complaint requires a trained investigator

6 to analyze and document the available evidence to support reliable decisions, objectively evaluate

7 the credibility of parties and witnesses, synthesize all available evidence—including both

8 inculpatory and exculpatory evidence—and take into account the unique and complex

9 circumstances of each case”).)

10 II. Procedural History

11

In January 2018, Plaintiffs filed their original complaint for injunctive relief against

12 Defendants Elisabeth D. DeVos and Candice Jackson in their official capacities,6 and the

13 Department. (Dkt. No. 1.) Plaintiffs filed the first amended complaint (“FAC”) the following

14 month, seeking injunctive relief and alleging causes of action for: (i) violation of the APA, 5

15 U.S.C. § 706; (ii) ultra vires action; and (iii) violation of the equal protection guarantee under the

16 Fifth Amendment. (Dkt. No. 23.) Defendants moved to dismiss the FAC pursuant to Federal

17 Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 40.) The Court granted dismissal of

18 Plaintiffs’ ultra vires action and equal protection claims without prejudice and with leave to

19 amend. (Dkt. No. 81 at 21.) The Court dismissed Plaintiffs’ APA claim with prejudice, however,

20 concluding that the 2017 Guidance did not constitute final agency action for purposes of judicial

21 review under the APA. (Id.)

22

Plaintiffs filed the second amended complaint (“SAC”) on October 31, 2018, alleging

23

24 5 The language quoted from the 2014 Q&A tracks the confidentiality provisions in the 2001

25

Guidance, which provides that if a student requests “that his or her name not . . . be revealed [to the accused party], the school should take all reasonable steps to investigate and respond to the

26

complaint consistent with the student’s request as long as doing so does not prevent the school from responding effectively to the harassment and preventing the harassment of other students.”

27

(See Dkt. No. 136-2, Ex. A-3 at 48.) 6 On June 25, 2018, Kenneth L. Marcus succeeded Candice Jackson as Assistant Secretary for

28

Civil Rights; he is automatically substituted as a party pursuant to Federal Rule of Civil Procedure 25(d).

7

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1 equal protection and ultra vires action claims. (Dkt. No. 86.) Defendants moved to dismiss the

2 SAC pursuant to Rules 12(b)(1) and 12(b)(6). (Dkt. No. 95.) Plaintiff then filed a motion for

3 reconsideration of the Court’s dismissal with prejudice of Plaintiffs’ APA claim.7 (Dkt. No. 107.)

4 On March 29, 2019, the Court denied Defendants’ motion to dismiss the SAC under Rule 12(b)(1)

5 for lack of Article III standing but granted dismissal with prejudice as to the equal protection claim

6 pursuant to Rule 12(b)(6) for lack of prudential standing. (Dkt. No. 120 at 17.) The Court also

7 granted dismissal with prejudice as to Plaintiffs’ ultra vires action claim because Plaintiffs “did

8 not amend their complaint after being granted leave to amend, but instead re-pled the same facts

9 and legal theories.” (Id. (internal quotation marks and citation omitted).) The Court granted

10 Plaintiffs’ motion for reconsideration the same day, concluding that the Ninth Circuit’s decision in

11 Gill v. U.S. Dep’t of Justice, 913 F.3d 1179 (9th Cir. 2019) warranted reconsideration of the

12 Court’s October 2018 Order “to the extent it dismissed Plaintiffs’ APA claim with prejudice.”

13 (Dkt. No. 121 at 1.) The Court directed Plaintiffs to file an amended complaint within 30 days of

14 the Order. (Id. at 12.)

15

Plaintiffs filed the third amended complaint (“TAC”) on April 18, 2019, alleging arbitrary

16 and capricious agency action in violation of the APA. (Dkt. No. 123.) The parties filed a joint

17 case management statement on April 25, 2019, in which both parties requested to proceed with

18 summary judgment briefing. (Dkt. No. 124 at ¶¶ 4, 17.) Following the case management

19 conference on May 2, 2019, the Court issued a scheduling order that set deadlines for Defendants’

20 production of the administrative record and the parties’ respective motions for summary judgment.

21 (Dkt. No. 128.) Defendants filed the administrative record on June 3, 2019. (Dkt. No. 134.) The

22 parties’ cross motions for summary judgment are fully briefed, (see Dkt. Nos. 136, 140, 141,

23 144), and the Court heard oral argument on October 17, 2019.

24

DISCUSSION

25

Plaintiffs assert that the Court should enter judgment in their favor because they have

26 satisfied the elements of their APA claim: (1) they have standing, (2) the 2017 Guidance

27

28

7 Plaintiffs first sought leave to file the motion for reconsideration, (Dkt. No. 103), which the Court granted, (Dkt. No. 104).

8

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1 constitutes final agency action, and (3) the 2017 Guidance is arbitrary and capricious. (Dkt. No.

2 136 at 13-30.) Defendants oppose Plaintiffs’ motion and move for judgment in their favor on two

3 grounds: (1) the 2017 Guidance does not constitute final agency action and is therefore non-

4 reviewable under the APA; and (2) “the 2017 Guidance is not arbitrary or capricious.” (Dkt. No.

5 140 at 16.)

6

A. Standing

7

The Court previously determined that Plaintiffs adequately alleged Article III standing to

8 pursue their APA claim, (see Dkt. Nos. 81 at 10-14 & 121 at 10-11), and Plaintiffs’ declarations in

9 support of their motion for summary judgment continue to demonstrate standing, (see Dkt. No.

10 136-2, Exs. B-D). Further, Defendants’ cross motion for summary judgment does not challenge

11 the Court’s prior rulings or set forth substantive arguments that Plaintiffs lack standing overall,

12 (see Dkt. No. 140 at n.5 (“While Defendants continue to dispute Plaintiffs’ standing generally, in

13 light of the Court’s prior rulings, this brief addresses only Plaintiffs’ standing to challenge the

14 2017 Guidance’s determination that mediation may be permissible in certain cases of alleged

15 sexual assault.”)). Thus, there is nothing in the record that changes the Court’s previous rulings

16 regarding Plaintiffs’ standing. Accordingly, the Court incorporates by reference its prior analysis

17 and concludes that Plaintiffs have established Article III standing to pursue their APA claim.

18

B. Final Agency Action

19

Under the APA, a plaintiff may seek judicial review of “final agency action for which there

20 is no other adequate remedy in a court.” 5 U.S.C. § 704. Determining whether an agency action is

21 “final” is a two-step process. Bennett v. Spear, 520 U.S. 154, 177-78 (1997). The action must

22 first “mark the consummation of the agency’s decisionmaking process.” Id. (internal quotation

23 marks and citation omitted). Next, “the action must be one by which rights or obligations have

24 been determined, or from which legal consequences will flow.” Id. at 178 (internal quotation

25 marks and citation omitted).

26

1. Consummation of Decision-Making

27

In determining whether a challenged agency action is “final” under the first prong of the

28 Bennett test, the Court must “look to see whether the agency has rendered its last word on the 9

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1 matter.” Oregon Nat. Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 984 (9th Cir. 2006)

2 (internal quotation marks and citation omitted). In doing so, the Court must consider “the effect of

3 the action and not its label.” Id. at 985 (internal quotation marks and citation omitted). Thus, the

4 Court must “‘focus on the practical and legal effects of the agency action’ and interpret finality in

5 a ‘pragmatic and flexible manner.’” Gill, 913 F.3d at 1184 (quoting Oregon Nat. Desert, 465 F.3d

6 at 982).

7

The 2017 Guidance satisfies the first Bennett prong because it “mark[s] the consummation

8 of the agency’s decisionmaking process.” See Bennett, 520 U.S. at 177-78. As the Court

9 previously concluded:

10

[B]ecause the 2017 Guidance consummates the Department’s

decision to rescind the previous guidance and thereby effect several

11

substantive changes, it reflects a definitive statement regarding the

Department’s current Title IX enforcement policy. Whether the

12

Department intends to engage in future rulemaking does not affect the

finality of that particular decision. See Fairbanks N. Star Borough v.

13

U.S. Army Corps of Eng’rs, 543 F.3d 586, 593 (9th Cir. 2008)

(rejecting defendant’s argument against finality that “conflate[d] one

14

. . . decision with a future yet distinct administrative process.”).

15 (Dkt. No. 81 at 17.) There is nothing in the record that changes the Court’s previous

16 determination; indeed, the parties do not dispute that the 2017 Guidance satisfies the first Bennett

17 prong. (See Dkt. Nos. 136 at 17 (“As to the first element of Bennett, the Court correctly held as a

18 matter of law that the [2017 Guidance] marks the consummation of the agency’s decision-making

19 process.”) & 140 at 17 (noting that “[a]t this juncture, it is necessary to address only the second

20 [Bennett] prong”).)

21

2. Legal Consequences

22

The parties dispute whether Plaintiffs have established that the 2017 Guidance satisfies the

23 second Bennett prong—whether the action is “one by which rights or obligations have been

24 determined, or from which legal consequences will flow.” Bennett, 520 U.S. at 178. In

25 addressing this prong in the October 2018 Order on Defendants’ motion to dismiss, the Court

26 determined that the 2017 Guidance did not constitute final agency action because it did not

27 produce legal consequences. (See Dkt. No. 81 at 16-20). The Court concluded that the 2017

28 Guidance is not binding on schools and does not otherwise produce legal consequences, but 10

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1 instead provides only “information” for schools regarding how OCR will assess a school’s

2 compliance with Title IX and its implementing regulations. (Id. at 18 (noting that “if a school is in

3 compliance with Title IX and its regulations, it need not change its policies in response to the 2017

4 Guidance”).) The Court dismissed Plaintiffs’ APA claim with prejudice, concluding that “the

5 2017 Guidance does not satisfy the second Bennett prong as a matter of law.” (Id. at 21.)

6

As previously discussed, however, the Court subsequently granted Plaintiffs’ motion for

7 reconsideration of that decision to the extent the Court dismissed the APA claim with prejudice.

8 (See Dkt. No. 121 at 12.) The Court determined that reconsideration was warranted based on an

9 Assurance of Compliance issued by OCR in which signatory schools agree to comply with Title

10 IX and “[a]ll regulations, guidelines, and standards issued by the Department” in order to receive

11 federal funding. (See id. at 6-9 (relying on Gill v. U.S. Dep’t of Justice, 913 F.3d 1179, 1185 (9th

12 Cir. 2019) (holding that nonbinding policy guidelines related to a voluntary government program

13 can result in legal consequences under the second Bennett prong)); see also Dkt. No. 136-2, Ex. A-

14 1 at 9 (“OCR Assurance”).) The Court concluded that “[i]f the 2017 Guidance constitutes the type

15 of ‘guidelines’ referenced in the Assurance, then Gill supports Plaintiffs’ contention that the

16 Guidance produces legal consequences; specifically, the potential termination of financial

17 assistance for failure to comply.” (Dkt. No. 121 at 7.)

18

In support of their motion for summary judgment, Plaintiffs reiterate the argument set forth

19 in their motion for reconsideration regarding the finality of the 2017 Guidance—both the OCR

20 Assurance and the Office of Management and Budget’s Assurance – Non-Construction Programs 21 (“OMB Assurance”)8 encompass the 2017 Guidance and failure to comply with the Guidance

22 could thus result in termination of financial assistance. (Dkt. No. 136 at 17-20.) Defendants

23 counter that the 2017 Guidance does not produce legal consequences because neither the OCR nor

24

25 8 The Court’s March 2019 Order on Plaintiffs’ motion for reconsideration did not address the

26

OMB Assurance because it “was issued in May 2017 and by its terms expired on September 30, 2017.” (Dkt. No. 121 at 7 n.6 (citing

27

https://www2.ed.gov/admins/lead/account/stateplan17/reviseded18100576.pdf).) In support of their motion for summary judgment, Plaintiffs submit a notice issued by OMB indicating an

28

“[e]xtension without change” of the OMB Assurance extending the expiration date to September 30, 2020. (See Dkt. No. 136-2, Ex. A-7 at 86.) Thus, the OMB Assurance is still in effect.

11

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1 OMB Assurance requires schools to comply with the 2017 Guidance. The Court agrees.

2

a. OCR Assurance

3

The OCR Assurance states, in pertinent part:

4

The applicant provides this assurance for the purpose of obtaining

Federal grants, loans, contracts (except contracts of insurance of

5

guaranty), property, discounts, funds made available through the U.S.

Department of Education, or other Federal financial assistance from

6

the Department. This assurance applies to all Federal financial

assistance from or funds made available through the Department,

7

including any that the applicant may seek in the future.

8 (Dkt. No. 136-2, Ex. A-1 at 9.)

9

By signing the OCR Assurance, applicants are required to comply with Title IX, among

10 other statutes, as well as “[a]ll regulations, guidelines, and standards issued by the Department

11 under any of these statutes.” Id. The OCR Assurance specifies that it “is binding on the

12 applicant,” and applicants “must comply” with it “to continue receiving Federal financial

13 assistance from the Department.” Id. Thus, the OCR Assurance provides that if the applicant fails

14 to comply, “the financial assistance can be terminated and the applicant can be declared ineligible

15 to receive further assistance.” Id.

16

b. OMB Assurance

17

Applicants for Department funding must also sign the OMB Assurance pursuant to section

18 8304 of the Elementary and Secondary Education Act of 1965 (“ESEA”), as amended by the

19 Every Student Succeeds Act. (See Dkt. No. 136-2, Ex. A-2 at 12, 16 (providing that “each State

20 educational agency . . . that submits a consolidated State plan or individual program plan under the

21 ESEA must have on file with the Secretary a single set of assurances” in order to receive

22 Department funding); see also Dkt. No. 140-1 at ¶ 22 (declaration of William E. Trachman,

23 former Deputy Assistant Secretary for Policy and Development and current Senior Counsel to the

24 OCR, attesting that “[i]n addition to the OCR Assurance of Compliance, grant applicants must

25 also complete the OMB Assurance”).) The OMB Assurance requires signatories to “comply with

26 all Federal statutes relating to nondiscrimination,” including Title IX, as well as “all applicable

27 requirements of all other Federal laws, executive orders, regulations, and policies governing this

28 program.” (Dkt. No. 136-2, Ex. A-2 at 16-17.) 12

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c. The Assurances do not require compliance with the 2017

1

Guidance

2

There is no dispute that schools must sign the Assurances to receive federal funding from

3 the Department. The parties instead dispute whether the Assurances require compliance with the

4 2017 Guidance at the risk of termination of federal funding. The Court’s March 2019 Order on

5 Plaintiffs’ motion for reconsideration addressed the legal effect of the OCR Assurance and

6 Defendants’ argument in opposition that the OCR Assurance did not require compliance with the

7 2017 Guidance. The Order states, in pertinent part:

8

Defendants’ argument . . . can succeed at the motion to dismiss stage

9

only if they have established as a matter of law that the 2017 Guidance is not the type of “guidelines” referred to in the Assurance. They have

10

not. Attorney argument that the guidelines referred to in the Assurance do not encompass the 2017 Guidance does not meet

11

Defendants’ burden, especially on a motion to dismiss where all plausible inferences must be drawn in Plaintiffs’ favor. Further,

12

Defendants’ identification of other guidelines that they contend are the type of guidelines contemplated by the Assurance, (see Dkt. No.

13

48 at 15), does not mean that as a matter of law the 2017 Guidance does not also constitute such “guidelines.” Defendants’ citation to the

14

statute describing the administrative and judicial process for terminating federal funding, (see Dkt. No. 115 at 10), likewise does

15

not satisfy their burden because it does not address the Assurance’s affirmative statement that “financial assistance can be terminated and

16

the applicant can be declared ineligible to receive further assistance” for failure to comply, see U.S. Dep’t of Educ., Assurance of

17

Compliance. While a more fulsome record may establish that the 2017 Guidance is not encompassed by the Assurance, the Court

18

cannot conclude based on the current record that as a matter of law the Assurance does not encompass the 2017 Guidance and that the

19

failure to follow the Guidance therefore cannot produce a legal consequence—withholding of federal funds for violating the

20

Assurance.

21 (Dkt. No. 121 at 8-9 (emphasis added).) The “more fulsome record” referenced in the Order is

22 now before the Court. And the record demonstrates that the 2017 Guidance does not produce

23 legal consequences because as a matter of undisputed fact neither the OCR nor OMB Assurance

24 requires compliance with the 2017 Guidance.

25

Defendants submit the declaration of William E. Trachman, former Deputy Assistant

26 Secretary for Policy and Development and current Senior Counsel to the OCR. (Dkt. No. 140-1 at

27 ¶ 1.) Mr. Trachman has been employed at the OCR since December 18, 2017, and his declaration

28 is “based on [his] personal knowledge and information made available to [him] in the course of 13

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1 [his] official duties.” (Id. at ¶¶ 1, 3.) Mr. Trachman’s declaration attests to the Department’s

2 administrative enforcement procedures and the statutory and regulatory authority underlying same.

3 (Id. at ¶¶ 7-13.) In pertinent part, OCR first investigates Title IX complaints and attempts to

4 “achieve voluntary compliance.” (Id. at ¶ 9.) If the school does not comply voluntarily:

5

OCR can effectuate compliance with Title IX in one of two ways: (1)

It can initiate administrative proceedings to withhold further funds; or

6

(2) it can refer the matter to [the Department of Justice (“DOJ”)] with

a recommendation to file a civil action to enjoin further violations (1

7

and 2 collectively referred to as “enforcement action”). See 20 U.S.C.

§ 1682; 34 C.F.R. § 100.8(a) 8

9 (Id. at ¶ 10.) “If OCR initiates an enforcement action, it would be based on Title IX and its

10 implementing regulations.” (Id. at ¶ 14.) This testimony is consistent with the 2017 Guidance,

11 which “states that the [G]uidance ‘does not add requirements to applicable law,’ and that

12 ‘enforcement efforts proceed from Title IX itself and its implementing regulations.’” (Id. (quoting

13 Dkt. No. 134-2, at 3 (2017 Letter), 10 (2017 Q&A)).)

14

Mr. Trachman attests that he “participated in the most recent development, review, and

15 issuance” of the OCR Assurance “[a]s part of [his] duties in OCR.” (Id. at ¶ 17.) He notes that

16 “OCR may use the signed assurances of compliance in an enforcement action” if OCR determines

17 that an applicant violated “Title IX, and all regulations, guidelines, and standards under the

18 statute.” (Id. at ¶ 19.) Regarding the scope of the OCR Assurance, Mr. Trachman attests:

19

The terms “guidelines” and “standards” addressed in the Assurance

of Compliance refer to certain notices or appendices that the

20

Department published in the Federal Register or Code of Federal

Regulations, or to specific standards in the regulations. Examples

21

include: Guidelines for Eliminating Discrimination and Denial of

Services on the Basis of Race, Color, National Origin, Sex, and

22

Handicap, 34 C.F.R. pt. 100, Appendix B; Guidelines on current title

IX requirements related to single-sex classes and schools, 67 Fed.

23

Reg. 31102-03, 31098-99 (2002) (issued pursuant to Section 5131(c)

of the [ESEA], which required that the Secretary “issue guidelines for

24

local education agencies” seeking funding for “programs to provide

same-gender schools and classrooms”). 25

26 (Id. at ¶ 20.) Further:

27

The Department’s interpretation of the Assurance of Compliance is

that the “regulations, guidelines, and standards issued by the

28

Department under any of [the listed] statutes” to which the Assurance

14

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of Compliance refers do not include the 2017 Guidance. Therefore,

1

if OCR initiates an enforcement action under the Assurance of

Compliance, it would proceed under Title IX and its

2

implementing regulations, not the 2017 Guidance.

3 (Id. at ¶ 21 (alteration in original) (emphasis added).) As for the OMB Assurance, Mr. Trachman

4 similarly attests:

5

The Department’s interpretation of the OMB assurance is that the

“Federal laws, executive orders, regulations, and policies governing

6

this program” to which the OMB assurance refers do not include the

2017 Guidance. Therefore, if OCR initiates an enforcement action

7

under the OMB assurance it would proceed under Title IX and

its implementing regulations, not the 2017 Guidance. 8

9 (Id. at ¶ 23 (emphasis added).) In sum, Mr. Trachman’s declaration establishes that the agency

10 tasked with administratively enforcing compliance with Title IX does not consider the 2017

11 Guidance binding on signatories of either the OCR or OMB Assurances and OCR will not initiate

12 an enforcement action based on violation of the 2017 Guidance. On this record, failure to comply

13 with the 2017 Guidance will not result in potential termination of federal funding. In the absence

14 of any legal consequences that flow from the 2017 Guidance, the Court must conclude that the

15 Guidance does not constitute final agency action.

16

Plaintiffs argue that Mr. Trachman “provides no foundation for his conclusory assertions.”

17 (Dkt. No. 141 at 9.) Plaintiffs also assert that whether the Assurances require compliance with the

18 2017 Guidelines “is determined pursuant to the federal common law of contracts, not one

19 contracting party’s post hoc assertions.” (Id. at 8.) The Court disagrees on both scores.9

20

First, Mr. Trachman’s declaration is based on his personal knowledge and official duties as

21 Senior Counsel to the OCR, and his role in the “development, review, and issuance” of the OCR

22 Assurance. (See Dkt. No. 140-1 at ¶¶ 1, 3, 17.) As such, he is qualified to state OCR’s position

23

24

9 Plaintiffs’ reply requests, in a footnote, “the opportunity to submit a request for limited discovery” under Federal Rule of Civil Procedure 56(d) “[i]f the Court is inclined to rely on the

25

Trachman Declaration to determine that the 2017 Policy is not final agency action.” (See Dkt. No. 141 at 9 n.2.) The request is procedurally improper, however, because Rule 56(d) applies “[i]f a

26

nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition” to summary judgment, Fed. R. Civ. P. 56(d), and Plaintiffs have

27

not filed a declaration as required under the Rule. Further, even apart from the lack of a declaration, Plaintiffs do not identify what facts they would discover or explain why such facts

28

would preclude summary judgment in Defendants’ favor. See Tatum v. City and Cty. of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006).

15

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1 regarding the legal effect of the 2017 Guidance. See OMB, Final Bulletin for Agency Good

2 Guidance Practices, 72 Fed. Reg. 3,432, 3,436 (Jan. 25, 2007) (noting “the authority of agency

3 General Counsels . . . to provide legal interpretations of statutory and regulatory requirements”).

4 Because the Department administratively enforces Title IX and its implementing regulations

5 through OCR, Mr. Trachman is similarly qualified to state whether OCR views the 2017 Guidance

6 as enforceable under the OMB Assurance. See id. Further, Mr. Trachman’s declaration that OCR

7 enforcement actions “proceed under Title IX and its implementing regulations, not the 2017

8 Guidance,” (Dkt. No. 140-1 at ¶¶ 21, 23), is supported by the plain language of the 2017

9 Guidance, which “states that the [G]uidance ‘does not add requirements to applicable law,’ and

10 that ‘enforcement efforts proceed from Title IX itself and its implementing regulations[,]’” (see

11 Dkt. No. 134-2, at 3 (2017 Letter), 10 (2017 Q&A))).

12

Mr. Trachman’s declaration is also supported by OMB and DOJ documents indicating that

13 guidance documents like the 2017 Guidance “do[ ] not create binding legal obligations or serve as

14 a basis for a noncompliance finding and federal funding termination.” (See Dkt. No. 140 at 18-19

15 (citing Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. at 3,436-37 (noting that

16 “a guidance document cannot legally bind [the public]” and “given their legally nonbinding

17 nature, significant guidance documents should not include mandatory language such as “shall,”

18 “must,” “required” or requirement,” unless the agency is using these words to describe a statutory

19 or regulatory requirement”); Mem. of the Attorney General, Prohibition on Improper Guidance

20 Documents, at 2 (Nov. 16, 2017) (noting that “the public has [no] obligations that go beyond those

21 set forth in the applicable statutes or legislative rules”), https://www.justice.gov/opa/press-

22 release/file/1012271/download; Mem. of the Associate Attorney General, Limiting Use of Agency

23 Guidance Documents in Affirmative Civil Enforcement Cases, at 1-2 (Jan. 25, 2018) (noting that

24 “[g]uidance documents cannot create binding requirements that do not already exist by statute or

25 regulation,” and DOJ “may not use its enforcement authority to effectively convert agency

26 guidance documents into binding rules”); https://www.justice.gov/file/1028756/download).)

27

Plaintiffs challenge Mr. Trachman’s statement that “[t]he terms ‘guidelines’ and

28 ‘standards’ addressed in the Assurance of Compliance refer to certain notices or appendices that 16

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1 the Department published in the Federal Register or Code of Federal Regulations, or to specific

2 standards in the regulations,” (see Dkt. No. 140-1 at ¶ 20), and argue that “extrinsic evidence

3 confirms that the term ‘guidelines and standards’” is not so limited, (see Dkt. No. 141 at 9-10). In

4 support, Plaintiffs note that “since 1976, DOJ has required every federal agency to publish

5 ‘guidelines for each type of program to which they extend financial assistance.’” (Id. at 10

6 (quoting 41 Fed. Reg. 52,669, 52670 (Dec. 1, 1976) (codified at 28 C.F.R. § 42.404(a))).)

7 Plaintiffs assert that DOJ has provided “examples of guidelines in agency instructions, handbooks,

8 and manuals, but nowhere suggested that guidelines must be published in the Federal Register.”

9 (Id. (citing Dkt. No. 141-1 at ¶¶ 7-11 (declaration of Seth M. Galanter, Senior Director at the

10 National Center for Youth Law)).)

11

In particular, Plaintiffs identify a DOJ publication titled “Procedures for the Development

12 of Guidelines by Federal Agencies for Recipients of Federal Financial Assistance” (the

13 “Procedures”) that was referenced in a U.S. Commission on Civil Rights report issued in 1996.

14 (See Dkt. No. 141-1, Ex. A-4 at 15-29.) The Procedures note that federal agencies are required “to

15 develop and publish Title VI guidelines for each type of program to which they extend financial

16 assistance” pursuant to 28 C.F.R. § 42.404. (Id. at 15.) The Procedures also use the terms

17 “guidance” and “guidelines” interchangeably, explaining that “[w]here the need for adequate

18 guidance beyond agency regulations is present, agencies shall develop guidelines.” (Id. at 17.)

19

That the Department (along with other agencies) is required to develop guidelines does not

20 mean that such guidelines are legally binding. Further, that the DOJ or even the Department itself

21 has used the terms “guidelines” and “guidance” interchangeably does not create a genuine dispute

22 as to Mr. Trachman’s declaration or the OMB and DOJ documents stating that guidance

23 documents themselves are not legally binding. Indeed, the Procedures recognize that guidelines

24 are “generally . . . essential for most agencies in order to provide meaningful direction” and “[t]he

25 head of each department and agency administering programs of federal financial assistance is

26 ultimately responsible for ensuring that all recipients are in compliance with all applicable laws

27 and regulations.” (See id. at 17, 29.) Thus, the Procedures demonstrate that “guidance” or

28 “guidelines” provide direction regarding agency enforcement procedures, but recipients of federal 17

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1 funds must ultimately comply with the underlying laws and regulations.

2

Plaintiffs also assert that “between 1977 and 1981” the Government Accountability Office

3 (“GAO”) “equated the Department’s ‘policy guidelines and compliance standards’ with

4 ‘guidance,’ and made clear that documents could be guidelines and standards without being

5 published in the Federal Register.” (Dkt. No. 141 at 10 (citing GAO, The Office for Civil Rights

6 in the Departments of Education and HHS Have Improved the Management of Their Civil Rights

7 Enforcement Responsibilities, HRD-82-21, at 4 (Nov. 27, 1981),

8 https://www.gao.gov/products/HRD-82-21; GAO, Review of the Department of Health,

9 Education, and Welfare’s Office for Civil Rights, HRD-77-78, at 7 (Mar. 30, 1977),

10 https://www.gao.gov/products/HRD-77-78).) However, evidence that another agency has long in

11 the past not limited the Department’s “guidelines and standards” to information published in the

12 Federal Register does not bear on how the Department itself views the 2017 Guidance. Nor does

13 it demonstrate that the Department treats the 2017 Guidance as legally binding under the

14 Assurances such that violation of the Guidance alone can serve as the basis for OCR enforcement

15 actions. Plaintiffs’ argument that “both before and after 1980, the Department described another

16 document promulgated by OCR as ‘guidelines’ even though it was not published in the Federal

17 Register,” is similarly unavailing because it does not concern the 2017 Guidance. (See Dkt. No.

18 141 at 10.)

19

Plaintiffs also fail to cite any evidence that OCR has initiated an administrative

20 enforcement action based on an alleged violation of the 2017 Guidance, or that OCR has authority

21 to do so under the Assurances. Mr. Trachman’s declaration, the OMB and DOJ documents

22 Defendants cite, and the 2017 Guidance itself, demonstrate instead that OCR does not have such

23 enforcement authority and agency enforcement actions must be predicated on violations of the

24 underlying statute and its implementing regulations. Plaintiffs asserted at oral argument that they

25 have previously cited “numerous” instances in which OCR initiated enforcement actions against

26 schools for failure to comply with the 2011 and 2014 Guidance and directed the Court’s attention

27 to “footnote 12” in their supplemental opposition to Defendants’ motion to dismiss the FAC, (Dkt.

28 No. 68 at 10 n.12). The footnote cites several pre-2017 Guidance “Resolution Agreements” 18

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1 between schools and OCR stemming from OCR’s informal resolution process in response to Title

2 IX complaints and following OCR’s initial investigation. (See id.) Plaintiff is mistaken, however,

3 because the Resolution Agreements do not reflect administrative enforcement actions premised on

4 violations of the 2011 or 2014 Guidance.

5

The first cited Agreement, concerning the University of Notre Dame’s Title IX grievance

6 policy’s in effect in 2011, states, in pertinent part:

7

The U.S. Department of Education, Office for Civil Rights

(OCR), initiated this investigation with the University of Notre

8

Dame (the University), pursuant to Title IX of the Education

Amendments of 1972 (Title IX), 20 U.S.C. §1681 et seq. and its

9

implementing regulation, 34 C.F.R. Part 106 (which prohibit

discrimination based upon sex in any education program or

10

activity receiving Federal financial assistance). The review

examined the University’s policies and procedures relating to peer

11

sexual harassment of students and the University’s implementation of

those policies and procedures. This resolution has been entered into

12

voluntarily by the University and does not constitute a finding or

admission that the University is not in compliance with Title IX

13

and/or its implementing regulations.

14 Resolution Agreement, Univ. of Notre Dame & OCR, at 1,

15 https://www2.ed.gov/about/offices/list/ocr/docs/investigations/05072011-b.pdf (emphasis added).

16

The Agreement notes that “[i]n accord with the recommendations in the [2011 Letter] . . .

17 the University will conclude its Title IX investigations within” 60 days “of receipt of a complaint,

18 except in extraordinary circumstances.” Id. at 8. Further, the Agreement specifies that OCR may

19 monitor the school to ensure it “has fulfilled the terms of th[e] Agreement and is in compliance

20 with the regulations implementing Title IX, at 34 C.F.R. §§ 106.8, 106.9, and 106.31, which were

21 at issue in th[e] review.” See id. at 9. The Agreement does not state that OCR will monitor the

22 University to ensure compliance with the 2011 Letter. Thus, the Agreement is not evidence that

23 OCR initiated an enforcement action based on a violation of the 2011 Letter as opposed to Title IX

24 and its implementing regulations. At most, the Agreement indicates that OCR considers and

25 applies its Title IX enforcement guidance (i.e., recommendations) in initially investigating Title IX

26 complaints through its informal resolution process.

27

Similarly, the second Resolution Agreement cited by Plaintiffs states, in pertinent part:

28

Michigan State University . . . has entered into the following

19

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agreement with the U.S. Department of Education, Office for Civil

1

Rights (OCR), to resolve the above-referenced complaints and to

ensure the University’s compliance with Title IX of the Education

2

Amendments of 1972 (Title IX), 20 U.S.C. § 1681 et seq., and its

implementing regulation, at 34 C.F.R. Part 106. 3

This resolution has been entered into voluntarily by the

4

University and does not constitute an admission by the University

that it has failed to comply with Title IX or its implementing

5

regulations.

6 Resolution Agreement, MSU & OCR (Aug. 28, 2015), https://www2.ed.gov/documents/press-

7 releases/michigan-state-agreement.pdf (emphasis added). The Agreement cites the 2014 Q&A in

8 discussing only one of the 30 “revised policies” the school planned to implement, (see id. at 4 n.2

9 (“As described in the April 29, 2014, OCR Questions and Answers on Title IX and Sexual

10 Violence”)), and does not otherwise reference the 2011 Letter or 2014 Q&A. Like the Notre

11 Dame Agreement, this Agreement notes that OCR will monitor the Agreement until it determines

12 that the school has fulfilled the Agreement’s terms “and is in compliance with the regulation[s]

13 implementing Title IX, at 34 C.F.R. §§ 106.8, 106.9, and 106.31, which were at issue in th[e]

14 case.” Id. at 21.

15

Plaintiffs next cite an October 2013 letter from OCR to State University of New York

16 (“SUNY”) regarding a Title IX compliance review conducted by OCR and subsequent Resolution

17 Agreement. (See Dkt. No. 68 at 10 n.12.) The letter states, in pertinent part:

18

OCR initiated this compliance review under Title IX of the Education

Amendments of 1972 (Title IX), as amended, 20 U.S.C. §1681 et seq.,

19

and its implementing regulation at 34 C.F.R. Part 106, which prohibit

discrimination on the basis of sex in programs and activities receiving

20

financial assistance from the Department. SUNY is a recipient of

financial assistance from the Department. Therefore, OCR had

21

jurisdictional authority to conduct this compliance review under Title

IX. 22

23 Ltr. from Timothy Blanchard, OCR, to Nancy Zimpher, Chancellor, SUNY, at 1 (Oct. 31, 2013),

24 http://www.ed.gov/documents/press-releases/suny-new-york-letter.doc. The letter notes that the

25 “the applicable legal standards described [t]herein are more fully discussed in [the 2011 Letter],”

26 and it also cites the 2001 Guidance. Id. at 2 n.2. The letter goes on to discuss Title IX’s

27 implementing regulations and what they “require,” while also noting that the 2011 Letter states

28 that schools “should notify all students and employees of the [email] address of the Title IX 20

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1 Coordinator.” Id. at 3 (emphasis added). The letter further references the 2011 Letter by noting

2 that SUNY’s procedures for investigating complaints of sex discrimination did not “state that

3 mediation of sexual assault complaints is prohibited, as recommended by OCR’s [2011 Letter].”

4 Id. at 18. The letter states that it “is not a formal statement of OCR policy,” but provides that

5 “OCR may initiate administrative enforcement or judicial proceedings to enforce the specific

6 terms and obligations of the Agreement.” Id. at 22.

7

The last cited document is a November 2014 letter from OCR to Princeton, which

8 references a Resolution Agreement following an OCR compliance review. See Ltr. from Timothy

9 Blanchard, OCR, to Christopher L. Eisgruber, President, Princeton Univ. (Nov. 5, 2014),

10 https://www2.ed.gov/documents/press-releases/princeton-letter.pdf. Like the SUNY letter, the

11 Princeton letter states, in pertinent part:

12

OCR is responsible for enforcing Title IX, as amended, 20 U.S.C. §

1681 et seq., and its implementing regulation at 34 C.F.R. Part 106,

13

which prohibit discrimination on the basis of sex in education

programs and activities receiving financial assistance from the

14

Department. The University is a recipient of financial assistance from

the Department. Therefore, OCR has jurisdictional authority to

15

investigate this complaint under Title IX.

16 Id. at 2. Also like the SUNY letter, the Princeton letter states that “the applicable legal standards

17 described [t]herein are more fully discussed in [the 2011 Letter and 2014 Q&A],” and it also cites

18 the 2001 Guidance. Id. at 3 n.2. Again, like the SUNY letter the Princeton letter discusses Title

19 IX’s implementing regulations and what they “require,” while also noting that the 2011 Letter

20 states that schools “should notify all students and employees of the [email] address of the Title IX

21 Coordinator.” See id. at 7 (emphasis added). The letter further references “requirements

22 articulated” in the 2011 Letter, “including recipients’ use of the preponderance of the evidence

23 legal standard.” See id. at 19 n.15. Like the SUNY letter, the Princeton letter states “[i]f the

24 University fails to implement the Agreement, OCR may initiate administrative enforcement or

25 judicial proceedings to enforce the specific terms and obligations of the Agreement.” Id. at 22.

26

Although the SUNY and Princeton letters state that OCR “may initiate enforcement or

27 judicial proceedings to enforce” the Resolution Agreements, they do not support an inference that

28 OCR can or has initiated an enforcement proceeding to terminate funding based on violation of the 21

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1 2017 Guidance for two reasons. First, the Resolution Agreements and SUNY and Princeton

2 letters predate both the 2017 Guidance and the previously discussed OMB and DOJ documents

3 stating that guidance documents cannot serve as a basis for Title IX noncompliance and

4 termination of federal funding. See Final Bulletin for Agency Good Guidance Practices, 72 Fed.

5 Reg. at 3,436-37 (noting that “a guidance document cannot legally bind [the public]” and “given

6 their legally nonbinding nature, significant guidance documents should not include mandatory

7 language such as ‘shall,’ ‘must,’ ‘required or requirement,’ unless the agency is using these words

8 to describe a statutory or regulatory requirement”); Mem. of the Attorney General, Prohibition on

9 Improper Guidance Documents, at 2 (Nov. 16, 2017) (noting that “the public has [no] obligations

10 that go beyond those set forth in the applicable statutes or legislative rules”),

11 https://www.justice.gov/opa/press-release/file/1012271/download; Mem. of the Associate

12 Attorney General, Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement

13 Cases, at 1-2 (Jan. 25, 2018) (noting that “[g]uidance documents cannot create binding

14 requirements that do not already exist by statute or regulation,” and DOJ “may not use its

15 enforcement authority to effectively convert agency guidance documents into binding rules”);

16 https://www.justice.gov/file/1028756/download). Because the Resolution Agreements concern

17 the rescinded guidance and reflect an approach to guidance documents that appears outdated based

18 on Mr. Trachman’s declaration and the OMB and DOJ documents cited above, they do not raise a

19 genuine dispute of material fact as to the legal effect of the 2017 Guidance.

20

Second, as Plaintiffs recognized in their August 2018 supplemental briefing, Title IX’s

21 implementing regulations “require OCR to try to resolve any violation through informal means,

22 i.e., a resolution agreement between the school and OCR; only if that is unsuccessful may OCR

23 initiate formal administrative proceedings to withhold funds.” (Dkt. No. 68 at 8 (emphasis added) 24 (citing 34 C.F.R. § 106.71).)10 Thus, Plaintiffs’ reliance on the Resolution Agreements is

25

26 10 Plaintiffs’ characterization of the OCR administrative enforcement process is consistent with

27

Mr. Trachman’s declaration. (See Dkt. No. 140-1 at ¶¶ 7-13 (noting that OCR first attempts to achieve voluntary compliance with Title IX through its informal resolution process and initiates an

28

“enforcement action” (i.e., formal administrative proceedings to withhold funding or referral to DOJ) only if the informal process is unsuccessful).)

22

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1 unavailing because those documents concern OCR’s compliance review and informal resolution

2 process, not an administrative enforcement action. The documents indicate that OCR considers its

3 Title IX enforcement guidance in initially investigating Title IX complaints through its informal

4 resolution process, but that evidence is not the same as evidence demonstrating that OCR has the

5 authority to initiate formal administrative proceedings (i.e., an enforcement action) to withhold

6 funds based on violation of OCR guidance. Indeed, Mr. Trachman attests that if a school does not

7 voluntarily comply during the informal resolution process, OCR “can initiate administrative

8 proceedings to withhold further funds,” or it “can refer the matter to DOJ.” (See id. at ¶ 10.) Such

9 actions are “collectively referred to as “enforcement action.” (Id. (citing 20 U.S.C. § 1682; 34

10 C.F.R. § 100.8(a)).) Further, “if OCR initiates an enforcement action under [either the OCR or

11 OMB Assurance] it would proceed under Title IX and its implementing regulations, not the 2017

12 Guidance.” (See id. at ¶¶ 21, 23.) Defendants have submitted evidence that OCR does not have

13 the authority to initiate an enforcement action based on noncompliance with guidance documents,

14 and Plaintiffs point to no evidence that OCR has done so.

15

Plaintiffs assert in a footnote that the practical effects of the 2017 Guidance “support a

16 finding of finality.” (See Dkt. No. 136 at 19 n.3 (noting that “schools across the U.S. have

17 changed their own policies and practices to comply with the [2017 Guidance]”) (citing Gill, 913

18 F.3d at 1185).) However, in the absence of any legal consequences, the practical effects of the

19 2017 Guidance are insufficient to establish finality. As the Court explained in its March 2019

20 Order on Plaintiffs’ motion for reconsideration, the practical effects noted in Gill “were not

21 entirely independent of the legal consequences” that the Gill court also determined existed in that

22 case. (See Dkt. No. 121 at 6, 9-10 (“The [Gill] court’s holding regarding finality based on the

23 practical effects of the Functional Standard relied on the same grounds as the court’s holding

24 regarding finality based on the Functional Standard’s legal consequences—the existence and

25 effect of the eGuardian User Agreement.”).) Here, there are no legal consequences. As for the

26 practical effects evinced by several schools changing their policies in response to the 2017

27 Guidance, (see Dkt. No. 136-2, Exs. A-4 – A-6 at 71-84), the Court has previously noted that

28 “voluntarily changing a policy in response to an agency’s nonbinding enforcement guidance is not 23

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1 the same as being required to do so by the guidance itself,” (see Dkt. No. 81 at 18).

2

Plaintiffs’ reliance on Gill with regard to the legal effect of the 2017 Guidance is also

3 unavailing. (See Dkt. No. 141 at 11 (arguing that “the relevant question is not whether the

4 government will enforce the assurances, but whether it can”).) As the Court previously noted, in

5 Gill “the government conceded at the summary judgment stage that ‘once an agency decides to

6 participate, the eGuardian User Agreement permits the Department to revoke agency membership

7 for violating various policies, including the [challenged agency action].’” (Dkt. No. 121 at 8

8 (quoting Gill, 913 F.3d at 1185 (finding that the eGuardian membership revocation is a legal

9 consequence for purposes of establishing finality under the second Bennett prong)).) Here,

10 Defendants expressly represent that violation of the 2017 Guidance cannot result in an OCR

11 enforcement action and potential termination of federal funding because OCR has no legal

12 authority to enforce the Guidance through the Assurances; Defendants support that argument with

13 Mr. Trachman’s declaration and citation to OMB and DOJ documents stating that guidance

14 documents like the 2017 Guidance cannot serve as the basis for enforcement actions. And the

15 2017 Guidance itself states that it does not create any new requirements. Thus, unlike the

16 challenged agency action in Gill, the 2017 Guidance does not “impose[ ] direct and appreciable

17 legal consequences” because the government cannot “take enforcement actions against a non-

18 complying” school under the Assurances based on a violation of the Guidance.11 See Gill, 913

19

20 11 Plaintiffs argue in a footnote that the 2017 Guidance is final agency action because it “‘imposes

21

obligations on the agency,’ regardless of ‘whether it imposes obligations on Plaintiffs’ or other third parties.” (Dkt. No. 141 at 12 n.6 (quoting Sierra Club v. Trump, 929 F.3d 670, 698 n.23 (9th

22

Cir. 2019)).) Plaintiffs assert that the 2017 Guidance “meets this standard because agency staff are obliged to follow the [Guidance] in enforcing Title IX and its regulations.” (Id.) However, as

23

the court noted in Sierra Club, challenged agency actions are final under Bennett if “they ‘alter[ed] the legal regime to which the agency [wa]s subject.” 929 F.3d at 698 n.23 (alterations in original)

24

(quoting Bennett, 520 U.S. at 177). Here, the 2017 Guidance does not alter the relevant legal regime because the record demonstrates that OCR does not have the legal authority to proceed

25

with an enforcement action against a non-complying school under the Assurances based on a violation of the 2017 Guidance. Nor does the Guidance otherwise affect OCR’s legal obligations

26

in ensuring that schools comply with Title IX and its implementing regulations. See, e.g., Mem. of the Associate Attorney General, supra, at 2 (noting that “agency guidance documents cannot

27

create any additional legal obligations”) (emphasis added). Plaintiffs’ reading of Sierra Club would render virtually any agency action as “final” so long as it directed agency staff to follow

28

procedures in the course of their duties. The Court rejects such an expansive reading of the footnote in Sierra Club.

24

Case 3:18-cv-00535-JSC Document 149 Filed 11/01/19 Page 25 of 25

United States District Court Northern District of California

1 F.3d at 1185.

2

***

3

Because Plaintiffs fail to establish a necessary element of their APA claim, specifically,

4 that the 2017 Guidance constitutes final agency action, their motion for summary judgment fails.

5 Conversely, Defendants provide evidence that the 2017 Guidance is not final agency action

6 because it does not produce legal consequences, and Plaintiffs fail to rebut Defendants’ evidence

7 with evidence of their own that gives rise to a genuine dispute of material fact on that score.

8 Accordingly, summary judgment on Plaintiffs’ APA claim is warranted in Defendants’ favor.

9

CONCLUSION

10

For the reasons stated above, the Court DENIES Plaintiffs’ motion and GRANTS

11 Defendants’ motion.

12

IT IS SO ORDERED.

13 Dated: November 1, 2019

14

15

JACQUELINE SCOTT CORLEY United States Magistrate Judge

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 General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 19-17555 Nature of Suit: 2899 Other Statutes - APA Review/Appeal Equal Rights Advocates, et al v. Elisabeth DeVos, et al Appeal From: U.S. District Court for Northern California, San Francisco Fee Status: Paid

Docketed: 12/23/2019

Case Type Information: 1) civil 2) united states 3) null

Originating Court Information:

District: 0971-3 : 3:18-cv-00535-JSC

Court Reporter: Belle Ball

Court Reporter: Joan Marie Columbini

Trial Judge: Jacqueline Scott Corley, Magistrate Judge

Date Filed: 01/25/2018

Date

Date Order/Judgment Date NOA

Order/Judgment:

EOD:

Filed:

11/01/2019

11/01/2019

12/20/2019

Date Rec'd COA:
12/20/2019

Prior Cases: None

Current Cases: None

EQUAL RIGHTS ADVOCATES Plaintiff - Appellant,

Sunu Chandy Direct: 202-588-7606 [COR LD NTC Retained] National Women's Law Center Suite 800 11 Dupont Circle Washington, DC 20036
Neena Chaudhry Direct: 202-588-5180 [COR LD NTC Retained] National Women's Law Center Suite 800 11 Dupont Circle Washington, DC 20036

Seth Galanter, Senior Director Direct: 202-288-8188 [COR LD NTC Retained] National Center for Youth Law 1313 L Street NW Suite 130 Washington, DC 20005
Karianne Jones Direct: 314-705-2836 [COR LD NTC Retained] Democracy Forward Foundation 1333 H Street NW 11th Floor Washington, DC 20005
Emily Martin, Vice President and General Counsel Direct: 202-588-5180 [COR LD NTC Retained] National Women's Law Center Suite 800 11 Dupont Circle Washington, DC 20036
Robin Thurston Direct: 202-448-9090 [COR LD NTC Retained] Democracy Forward Foundation Suite 1100 1333 H Street NW 11th Floor Washington, DC 20005
Jennifer Reisch Direct: 415-621-0672 [COR NTC Retained] Equal Rights Advocates 1170 Market Street Suite 700 San Francisco, CA 94120
Elizabeth Tang Direct: 661-644-4985

VICTIM RIGHTS LAW CENTER Plaintiff - Appellant,

[COR NTC Retained] Apt. 204 1355 17th Street NW Washington, DC 20036
Sunu Chandy Direct: 202-588-7606 [COR LD NTC Retained] (see above)
Neena Chaudhry Direct: 202-588-5180 [COR LD NTC Retained] (see above)
Seth Galanter, Senior Director Direct: 202-288-8188 [COR LD NTC Retained] (see above)
Karianne Jones Direct: 314-705-2836 [COR LD NTC Retained] (see above)
Emily Martin, Vice President and General Counsel Direct: 202-588-5180 [COR LD NTC Retained] (see above)
Robin Thurston Direct: 202-448-9090 [COR LD NTC Retained] (see above)
Jennifer Reisch Direct: 415-621-0672 [COR NTC Retained] (see above)
Elizabeth Tang Direct: 661-644-4985 [COR NTC Retained] (see above)

SURVJUSTICE, INC. Plaintiff,
v.

ELISABETH DEVOS, in her official capacity Marleigh Dover, Esquire, Assistant Director

as Secretary of Education

[COR NTC Government]

Defendant - Appellee,

DOJ - U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530

Stephanie Robin Marcus [COR NTC Fed Public Defender] DOJ - U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530

CANDICE JACKSON, in her official capacity as Acting Assistant Secretary for Civil Rights
Defendant - Appellee,

Marleigh Dover, Esquire, Assistant Director [COR NTC Government] (see above)
Stephanie Robin Marcus [COR NTC Fed Public Defender] (see above)

U.S. DEPARTMENT OF EDUCATION Defendant - Appellee,

Marleigh Dover, Esquire, Assistant Director [COR NTC Government] (see above)

Stephanie Robin Marcus [COR NTC Fed Public Defender] (see above)

KENNETH L. MARCUS, in his official capacity as Assistant Secretary for Civil Rights
Defendant - Appellee,

Marleigh Dover, Esquire, Assistant Director [COR NTC Government] (see above)
Stephanie Robin Marcus [COR NTC Fed Public Defender] (see above)

EQUAL RIGHTS ADVOCATES; VICTIM RIGHTS LAW CENTER, Plaintiffs - Appellants,
and

SURVJUSTICE, INC.,
Plaintiff,
v.
ELISABETH DEVOS, in her official capacity as Secretary of Education; CANDICE JACKSON, in her official capacity as Acting Assistant Secretary for Civil Rights; U.S. DEPARTMENT OF EDUCATION; KENNETH L. MARCUS, in his official capacity as Assistant Secretary for Civil Rights,
Defendants - Appellees.

12/23/2019 1
31 pg, 1.74 MB

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: Appellants Equal Rights Advocates and Victim Rights Law Center Mediation Questionnaire due on 12/30/2019. Transcript ordered by 01/21/2020. Transcript due 02/18/2020. Appellants Equal Rights Advocates and Victim Rights Law Center opening brief due 03/30/2020. Appellees Elisabeth DeVos, Candice Jackson, Kenneth L. Marcus and U.S. Department of Education answering brief due 04/30/2020. Appellant's optional reply brief is due 21 days after service of the answering brief. [11542147] (RT) [Entered: 12/23/2019 12:55 PM]

12/30/2019 2

Filed (ECF) Appellants Equal Rights Advocates and Victim Rights

2 pg, 198.09 KB Law Center Mediation Questionnaire. Date of service: 12/30/2019.

[11546677] [19-17555] (Thurston, Robin) [Entered: 12/30/2019

01:46 PM]

12/30/2019 3

The Mediation Questionnaire for this case was filed on 12/30/2019. To submit pertinent confidential information directly to the Circuit Mediators, please use the following link. Confidential submissions may include any information relevant to mediation of the case and settlement potential, including, but not limited to, settlement history, ongoing or potential settlement discussions, non-litigated party related issues, other pending actions, and timing considerations that may impact mediation efforts.[11547323]. [19-17555] (AD) [Entered: 12/30/2019 06:44 PM]

01/02/2020 4

MEDIATION ORDER FILED: This case is NOT SELECTED for

2 pg, 103.01 KB inclusion in the Mediation Program. Counsel may contact circuit

mediator to discuss services available through the court's mediation

program, to request a settlement assessment conf, or to request a

stay of the appeal for settlement purposes. Also, upon agreement of

the parties, the brfing sch can be modified or vacated to facilitate

settlement discussions. Csl are requested to send copies of this

01/03/2020 5 01/06/2020 6
01/06/2020 7
01/06/2020 8 03/04/2020 9 03/04/2020 10

order to their clients. Info regarding the mediation program may be found at www.ca9.uscourts.gov/mediation. [11548895] (BLS) [Entered: 01/02/2020 11:20 AM]
Added Attorney(s) Elizabeth Tang, Jennifer Reisch for party(s) Appellant Victim Rights Law Center Appellant Equal Rights Advocates, in case 19-17555. [11549957] (JBS) [Entered: 01/03/2020 10:25 AM]
Filed (ECF) notice of appearance of Stephanie Robin Marcus (U.S. Department of Justice, Civil Division, Appellate Staff, Room 7539, 950 Pennsylvania Ave., NW, Washington, DC 20530) for Appellees Elisabeth DeVos, Candice Jackson, Kenneth L. Marcus and USEDU. Substitution for Steven Andrew Myers for Appellees Elisabeth DeVos, Candice Jackson, Kenneth L. Marcus and USEDU and Benjamin Thomas Takemoto for Appellees Elisabeth DeVos, Candice Jackson, Kenneth L. Marcus and USEDU. Date of service: 01/06/2020. (Party was previously proceeding with counsel.) [11551170] [19-17555] (Marcus, Stephanie) [Entered: 01/06/2020 08:39 AM]
Filed (ECF) notice of appearance of Marleigh Diane Dover (Appellate Staff, Civil Division, U.S. Dept. of Justice, 950 Pennsylvania Ave. NW Washington, DC 20530) for Appellees Elisabeth DeVos, Candice Jackson, Kenneth L. Marcus and USEDU. Substitution for Benjamin Thomas Takemoto for Appellees Elisabeth DeVos, Candice Jackson, Kenneth L. Marcus and USEDU and Steven Andrew Myers for Appellees Elisabeth DeVos, Candice Jackson, Kenneth L. Marcus and USEDU. Date of service: 01/06/2020. (Party was previously proceeding with counsel.) [11551208] [19-17555] (Dover, Marleigh) [Entered: 01/06/2020 08:59 AM]
Attorneys Steven Andrew Myers, and Benjamin Thomas Takemoto in 19-17555 substituted by Attorneys Stephanie Robin Marcus and Marleigh Dover in 19-17555 [11551887] (RR) [Entered: 01/06/2020 01:12 PM]
Filed (ECF) Streamlined request for extension of time to file Opening Brief by Appellants Equal Rights Advocates and Victim Rights Law Center. New requested due date is 04/29/2020. [11618033] [19-17555] (Jones, Karianne) [Entered: 03/04/2020 01:28 PM]
Streamlined request [9] by Appellants Equal Rights Advocates and Victim Rights Law Center to extend time to file the brief is approved. Amended briefing schedule: Appellants Equal Rights

Advocates and Victim Rights Law Center opening brief due 04/29/2020. Appellees Elisabeth DeVos, Candice Jackson, Kenneth L. Marcus and U.S. Department of Education answering brief due 05/29/2020. The optional reply brief is due 21 days from the date of service of the answering brief. [11618546] (JN) [Entered: 03/04/2020 04:14 PM]

04/13/2020 11
2 pg, 74.77 KB

Filed (ECF) Appellants Equal Rights Advocates and Victim Rights Law Center Correspondence: COVID-19 Extension. Date of service: 04/13/2020 [11658583] [19-17555] (Thurston, Robin) [Entered: 04/13/2020 09:41 AM]

04/13/2020

Updated deadlines. Automatic 60 day extension Re: Notice Covid 19 (Docket Entry No. [11]). Appellants Equal Rights Advocates and Victim Rights Law Center opening brief due 06/29/2020. Appellees Elisabeth DeVos, Candice Jackson, Kenneth L. Marcus and U.S. Department of Education answering brief due 07/28/2020. The optional reply brief is due 21 days after service of the answering brief. [11659398] (EU) [Entered: 04/13/2020 02:51 PM]