In the past week, two federal judges have declined to delay the effective date of the Trump administration’s controversial regulations governing how Title IX applies to sexual harassment and violence. That means that the regulations go into effect today, August 14, as scheduled.
The state of New York sued the U.S. Education Department (ED) in New York federal court, while 17 states and the District of Columbia filed suit in District of Columbia federal court. The plaintiff states claim that ED acted “arbitrarily and capriciously” when promulgating the regulations in violation of the Administrative Procedure Act.
The plaintiffs in both cases moved for a preliminary injunction barring the implementation of the regulations while litigation proceeded, or alternatively a stay in the rule’s effective date. The American Association of Community Colleges (AACC) joined the American Council on Education and several other higher education associations in support of the preliminary injunction motions.
On August 9, the judge in the New York case denied the motion, ruling that the plaintiffs had failed to show that they were likely to prevail in the underlying case. Three days later, the D.C. court judge ruled against the plaintiffs for the same reason. Both cases will proceed, but these findings do not bode well for their ultimate outcome. Plaintiffs in a third case in Massachusetts have made a similar motion, but that judge has signaled that it, too, would not be successful.
Colleges face extensive changes
As detailed in this summary, the Title IX regulations will require community colleges to make extensive changes to their processes for handling sexual harassment and violence cases. In particular, institutions will need to conduct live hearings with cross-examination by the parties’ representatives in Title IX cases that are formally pursued.
Many AACC members have indicated they are struggling to comply with the regulations in the 88 days they were given to do so, a very short time in any circumstance but especially so during a pandemic.
While colleges should continue to train staff and make other necessary policy and procedural changes, it is important to remember that Title IX governs a college’s response to a case of sex discrimination. So the regulations do not truly come into play until an institution has to handle a complaint that meets the new definition of sexual harassment.
However, colleges should keep making strides so that they are ready if and when that occurs.