Victim Rights Law Center v. DeVos

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

______________________________

)

VICTIM RIGHTS LAW CENTER, )

EQUAL RIGHTS ADVOCATES, )

LEGAL VOICE, )

CHICAGO ALLIANCE AGAINST )

SEXUAL EXPLOITATION, )

JANE DOE, )

an individual by and through )

her mother and next friend )

Melissa White, )

NANCY DOE, )

MARY DOE, )

)

Plaintiffs, )

)

v. ) CIVIL ACTION

) NO. 20-11104-WGY

MIGUEL CARDONA,1 )

in his offical capacity as )

Secretary of Education, )

SUZANNE GOLDBERG,2 )

in her offical capacity as )

Acting Assistant Secretary for)

Civil Rights, )

UNITED STATES DEPARTMENT )

OF EDUCATION, )

)

Defendants. )

______________________________)

YOUNG, D.J. July 28, 2021

FINDINGS OF FACT, RULINGS OF

LAW, AND ORDER FOR JUDGMENT

1 The Court substitutes defendant Miguel Cardona for

Elisabeth D. DeVos pursuant to Federal Rule of Civil Procedure

25(d).

2 The Court substitutes defendant Suzanne Goldberg for

Kenneth L. Marcus pursuant to Federal Rule of Civil Procedure

25(d).

I. INTRODUCTION

On November 29, 2018, the United States Department of

Education (the “Department”) proposed to amend regulations

implementing Title IX of the Education Amendments of 1972, 20

U.S.C. § 1681 (“Title IX”). See Nondiscrimination on the Basis

of Sex in Education Programs or Activities Receiving Federal

Financial Assistance (“Proposed Rule”), 83 Fed. Reg. 61,462

(proposed Nov. 29, 2018). After receiving comments on the

Proposed Rule, the Department published the Final Rule on May

19, 2020. See Nondiscrimination on the Basis of Sex in

Education Programs or Activities Receiving Federal Financial

Assistance (“Final Rule”), 85 Fed. Reg. 30,026 (May 19, 2020)

(codified at 34 C.F.R pt. 106). The Final Rule sets new

standards for actionable sexual harassment under Title IX, new

procedures for Title IX investigations, and procedural

safeguards for those accused of sexual harassment. See

generally id.

Four organizations that advocate on behalf of victims of

sexual violence, Victim Rights Law Center (“Victim Rights”),

Equal Rights Advocates, Legal Voice, and Chicago Alliance

Against Sexual Exploitation (“Chicago Alliance”) (collectively,

the “Organizational Plaintiffs”), and three individual

plaintiffs, Jane Doe, Nancy Doe, and Mary Doe (collectively, the

“Individual Plaintiffs”), seek to challenge the Final Rule as

violative of the Administrative Procedure Act (the “APA”) and

the Equal Protection Clause of the Fifth Amendment. Second Am.

Compl. ¶¶ 267-293, ECF No. 138-1.

The Organizational and Individual Plaintiffs (collectively,

the “Advocates”) challenge the Final Rule and argue that it

violates section 706(2)(A) of the APA because thirteen of its

provisions depart from established practice and procedure

regulating educational institutions “not in accordance with law”

(“count I”), and that the same thirteen provisions are the

product of arbitrary and capricious decision making (“count

II”). Id. ¶¶ 267-276; see Pls.’ Pretrial Br. 6-7, ECF No. 145.

The Advocates also argue that six provisions violate section

706(2)(C) of the APA because they were promulgated in excess of

the Department’s statutory authority (“count III”), that five

provisions are not logical outgrowths of the Proposed Rule in

violation of section 706(2)(D) of the APA (“count IV”), and that

thirteen provisions violate the Equal Protection Clause of the

Fifth Amendment by discriminating on the basis of sex (“count

V”). Second Am. Compl. ¶¶ 277-293. The Advocates sought a

preliminary injunction to halt the implementation of the Final

Rule just as soon as it was promulgated. See Mot. Prelim. Inj.,

ECF No. 31.

The defendants, Miguel Cardona in his official capacity as

Acting Secretary of Education, the Department, and Suzanne

Goldberg in her official capacity as Acting Assistant Secretary

for Civil Rights (collectively, the “Government”) challenge the

Advocates’ Article III standing and maintain that the

Department’s promulgation was constitutional, within its

statutory authority, and otherwise in compliance with the APA.

Defs.’ Pretrial Br. 1-8, 10-15, ECF No. 144.

As is its wont, this Court collapsed hearing on the

preliminary injunction with trial on the merits pursuant to

Federal Rule of Civil Procedure 65(a). But see Nwaubani v.

Grossman, 806 F.3d 677, 679 (1st Cir. 2015) (Thompson, J.)

(cautioning against overuse of this procedural device). A full

jury-waived trial was held on November 18, 2020. Elec. Clerk’s

Notes (Nov. 18, 2020), ECF No. 146.

The Court here enters its findings of fact and rulings of

law as required by Federal Rule of Civil Procedure 52.

II. TITLE IX GENERALLY

Congress enacted Title IX for two reasons: “to avoid the

use of federal resources to support discriminatory practices”

and “to provide individual citizens effective protection against

those practices.” Cannon v. Univ. of Chi., 441 U.S. 677, 704

(1979). To those ends, the statute mandates that “[n]o person

in the United States shall, on the basis of sex, be excluded

from participation in, be denied the benefits of, or be

subjected to discrimination under any education program or

activity receiving Federal financial assistance . . . .” 20

U.S.C. § 1681(a). The term “program or activity” includes “all

of the operations of” all schools, from K-12 to colleges and

universities (apart from certain religious institutions), that

receive any kind of federal funds (“recipients” or “schools”).

Id. § 1687.

Title IX may be enforced judicially, as when a plaintiff

sues a school for damages, see Franklin v. Gwinnett Cty. Pub.

Sch., 503 U.S. 60, 76 (1992); however, the Supreme Court has

sharply limited liability in such cases. A plaintiff may

recover “only for harassment that is so severe, pervasive, and

objectively offensive that it effectively bars the victim’s

access to an educational opportunity or benefit,” and he or she

must prove the school’s “deliberate indifference to known acts

of harassment in its programs or activities.” Davis v. Monroe

Cty. Bd. of Educ., 526 U.S. 629, 633 (1999). This standard is

met only if “an official who at a minimum has authority to

address the alleged discrimination and to institute corrective

measures on the recipient’s behalf has actual knowledge of

discrimination in the recipient’s programs and fails adequately

to respond.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.

274, 290 (1998). The Final Rule refers to these three standards

-- the strict definition of sexual harassment and the

requirements of actual knowledge and deliberate indifference --

as the “Gebser/Davis framework.” 85 Fed. Reg. at 30,032.

Title IX may also be enforced administratively by the

Department. See Gebser, 524 U.S. at 292 (“Agencies generally

have authority to promulgate and enforce requirements that

effectuate the statute’s nondiscrimination mandate, 20 U.S.C.

§ 1682, even if those requirements do not purport to represent a

definition of discrimination under the statute.”). All such

regulations must “be consistent with achievement of the

objectives of” Title IX. 20 U.S.C. § 1682.

In 2001, following the Supreme Court’s Gebser and Davis

decisions, the Department issued a guidance document -- rather

than a binding rule -- that adopted a broader scope of liability

for administrative enforcement of Title IX than under the

Gebser/Davis framework. U.S. Dep’t of Educ., Off. for Civil

Rights, Revised Sexual Harassment Guidance: Harassment of

Students by School Employees, Other Students, or Third Parties

(Jan. 19, 2001) (“2001 Guidance”), https://www2.ed.gov/about

/offices/list/ocr/docs/shguide.pdf. The guidance document

defined sexual harassment as “unwelcome conduct of a sexual

nature” that is “severe, persistent, or pervasive.” Id. at vi,

2 (emphasis added) (quoting Off. for Civil Rights; Sexual

Harassment Guidance: Harassment of Students by School Employees,

Other Students, or Third Parties, 62 Fed. Reg. 12,034, 12,041

(Mar. 13, 1997)). Actual notice was not needed to trigger

liability. The school could be liable if a “responsible

employee” reasonably “should have known” of the harassment, and

“responsible employee” was defined broadly to include anyone a

student would reasonably believe had the authority or duty to

take action. Id. at 13.3

The Final Rule repudiates the 2001 Guidance and largely

aligns the standards for administrative enforcement of Title IX

with the Gebser/Davis framework that governs suits for monetary

damages -- though it modifies or “adapts” that framework in

important ways. 85 Fed. Reg. at 30,033. The Rule also

introduces several due process protections for respondents

accused of sexual harassment and limits the application of Title

IX for off-campus (i.e., non-school related) incidents and

parties no longer affiliated with the school.

3 The Department later issued two other guidance documents.

See U.S. Dep’t of Educ., Off. for Civil Rights, Dear Colleague

Letter: Sexual Violence (Apr. 4, 2011) (“2011 Letter”),

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-

201104.pdf; U.S. Dep’t of Educ., Off. for Civil Rights,

Questions and Answers on Title IX and Sexual Violence (Apr. 29,

2014) (“2014 Q&A”), https://www2.ed.gov/about/offices/list/ocr/

docs/qa-201404-title-ix.pdf. These documents, however, were

rescinded in 2017. U.S. Dep’t of Educ. & U.S. Dep’t of Justice,

Dear Colleague Letter (Feb. 22, 2017), https://www2.ed.gov/

about/offices/list/ocr/letters/colleague-201702-title-ix.pdf.

III. FINDINGS OF FACT

During the trial, as stipulated by the parties, this Court

admitted into evidence the Advocates’ declarations and the

entire administrative record. After thorough review of the

evidence, this Court makes the following findings.

A. Consequences to the Advocates

1. Mary Doe

Mary Doe is an undergraduate student attending a four-year

college in North Carolina. Pls.’ Pretrial Br., Ex. A, Decl.

Mary Doe (“Decl. Mary Doe”) ¶ 1, ECF No. 145-1. Mary lived on

her college’s campus in the fall of 2020,4 where she experienced

a sexual assault by a male classmate (the “Classmate”) in her

campus dormitory. Id. ¶¶ 2, 3-8.

She obtained a temporary restraining order, id. ¶ 15, and

then met with her school’s Title IX director (the “Director”),

id. ¶¶ 19-20. The Director told Mary that if she initiated a

Title IX investigation, Mary would be required to attend a live

hearing, during which she could not sit in a separate room from

the Classmate, and that she could only have one person attend

the hearing with her. Id. ¶ 20.

Mary encountered the Classmate twice on campus, once at the

cafeteria and another time while in a common courtyard, and he

4 Despite the COVID-19 pandemic, Mary’s college reopened for

on-campus living and classes. Decl. Mary Doe ¶ 2.

made no effort to remove himself from her presence. Id. ¶ 23.

Mary’s dorm was near the Classmate’s, she passed his dorm on her

fastest way to class, and his presence on campus made her

uncomfortable. See id. ¶¶ 23-26. Mary spoke to the Director

about removing the Classmate from campus, but the Director said

that if the school made any accommodation for Mary, it would

have to offer the same accommodation to the Classmate as well.

Id. ¶¶ 24-25. The Director suggested that Mary take the longer

way to her classes to avoid the Classmate but that the school

could not change the Classmate’s routes on campus. Id. ¶ 24.

Mary also interpreted the Director’s statements to suggest that

the Classmate would be removed from campus only if he violated

the temporary restraining order. Id. ¶ 24. Mary elected to

initiate a Title IX investigation. Id. ¶ 27.

Later, Mary and her attorney met with the Director, and

they were informed that the school would aim to complete its

investigation in sixty days, despite the student handbook

reserving the right to extend the investigation beyond sixty

days. Id. ¶ 28. Furthermore, the Director stated that the

school would not obtain the police report or results of the rape

kit performed on Mary after the assault, but that she could

bring these materials to the hearing. Id. ¶ 29.

Mary takes issue with the effects of the Final Rule,

including the “presumption that [her] assault did not happen”

while the investigation is ongoing, id. ¶ 38, that the “school

is not permitted to provide [her] with any supportive measures

that could be considered punitive to [the Classmate] until the

investigation is resolved,” id. ¶ 40, that “the Final Rule

prohibits [her] school from restricting the [Classmate] from

discussing the allegations with anyone,” id. ¶ 41, that Mary is

“required to participate in a live hearing,” id. ¶ 42, that her

school will not “rely on the statements of any witness who does

not appear and submit to cross-examination at the live hearing,”

id., that if the Classmate fails to attend the hearing, the

school will not consider the text messages he sent to Mary, id.

¶ 43, that she may be cross-examined at the hearing, id. ¶ 44,

and that the College “is permitted to dismiss [her] complaint

when [the Classmate] graduates,” id. ¶ 47.

Given these concerns and impediments, Mary has considered

withdrawing her Title IX complaint. Suppl. Decl. Mary Doe ¶ 7,

ECF No. 157-1.

2. Nancy Doe

Nancy Doe is a former undergraduate student at a

Connecticut university. Pls.’ Pretrial Br., Ex. B, Decl. Nancy

Doe ¶ 1, ECF No. 145-2. In 2015, while an undergraduate

student, Nancy experienced a sexual assault and elected not to

bring a Title IX claim. Id. ¶¶ 2-8. Approximately three years

later, two students filmed Nancy without her consent during a

sexual encounter at an off-campus apartment. Id. ¶ 9. The

video was distributed among her classmates. Id. ¶¶ 10-12.

Students harassed Nancy, and not wanting to involve the police,

she sought relief from her university. Id. ¶¶ 13-17. The Title

IX coordinator discouraged her from pursuing a formal

investigation and offered her forms of relief that Nancy found

insufficient. Id. ¶ 17. Nancy remained uncertain whether she

wanted to pursue a formal investigation into the sexual

exploitation, and the Title IX coordinator suspended her

investigation. Id. ¶¶ 18-23. In 2020, as an alumna, Nancy

reopened her Title IX investigation into the non-consensual

recording against a respondent who was still enrolled at the

University. Id. ¶¶ 38-39.

No one at the school has discussed with Nancy how the Final

Rule will affect her complaint; however, Nancy is concerned that

the Final Rule will bar her investigation because the incident

occurred off campus and she has since graduated. Id. ¶¶ 41-43.

Nancy will ask the university to stop her formal investigation

if her complaint is subject to the Final Rule because she is

concerned about being cross-examined, she is concerned that the

Final Rule will prevent the university from investigating her

complaint, and she feels as though the Final Rule strips away

her civil rights. Id. ¶¶ 44-46, 49-52.

3. Jane Doe

Jane Doe, a ten-year-old fourth-grade student at a

community school in Michigan, was sexually harassed and

assaulted by a classmate on four occasions between January and

February 2020. Pls.’ Pretrial Br., Ex. C, Decl. Jane Doe ¶¶ 1-

3, ECF No. 145-3. Administrators and school board members did

little to address the assault and minimized the incident. Id.

¶¶ 4-13. To date, Jane and her guardian have not initiated a

Title IX investigation. Id. ¶¶ 16-18. Doe’s guardian is

concerned that the harassment Doe suffered is insufficient under

the Final Rule to pursue a Title IX complaint, that Jane will

not receive the measures she needs because they will be

considered “punitive” to her classmate, and that the Final

Rule’s standard of conduct for schools (deliberate indifference)

allows schools to sweep complaints under the rug. Id. ¶¶ 24-27.

4. The Organizational Plaintiffs

The Organizational Plaintiffs advocate on behalf of victims

of sexual assault during the Title IX process. See Pls.’

Pretrial Br., Ex. D, Am. Decl. Noreen Farrell (Equal Rights

Advocates) (“Decl. Equal Rights Advocates”) ¶¶ 3, 6, 8, 9, ECF

No. 145-4; id. Ex. E, Am. Decl. Stacy Malone (Victim Rights Law

Center) (“Decl. Victim Rights”) ¶¶ 3-8, ECF No. 145-5; id. Ex.

F, Am. Decl. Kaethe Morris Hoffer (Chicago Alliance Against

Sexual Exploitation) (“Decl. Chicago Alliance”) ¶¶ 3-7, ECF No.

145-6; id. Ex. G, Am. Decl. Lisa M. Stone (Legal Voice) (“Decl.

Legal Voice”) ¶¶ 6-11, ECF No. 145-7. The Organizational

Plaintiffs all claim that the Final Rule frustrates their

mission, impairs their ability to advise clients, diverts

resources from daily operations, delays programing, forces them

to reallocate staff, requires them to update educational

material, and requires them to spend time analyzing the Final

Rule to continue serving victims in accordance with their

missions. See Decl. Chicago Alliance ¶¶ 9-19; Decl. Victim

Rights ¶¶ 8, 10-31; Decl. Equal Rights Advocates ¶¶ 8-26; Decl.

Legal Voice ¶¶ 9-20. Only one of these organizations, Victim

Rights, attests that it has actively experienced unwillingness

and hesitancy from student victims to continue their Title IX

complaints. Decl. Victim Rights ¶ 9. Specifically, Victim

Rights demonstrates that the cause of this hesitation is the

requirement that the complainant be cross-examined at the Title

IX hearing. Id.

B. The Administrative Record

The administrative record demonstrates the Department’s

consideration of each of the challenged provisions. The

Department considered and responded to comments regarding a

recipient’s response to sexual assault, its procedures,

safeguards, deliberate indifference standard of conduct (section

106.44(a)), and appropriate Due Process and First Amendment

safeguards. Administrative R. at 000061-62, 000102 (appending

34 C.F.R. § 106); see Notice Filing Clerk’s Office, ECF No. 149.

Similarly, the Department detailed its reasoning for adopting

each of its definitions in section 106.30, including its

definitions of sexual harassment, formal complaint, and

supportive measures. Administrative R. at 000005-06, 000061-62,

000065, 000068, 000085, 000091, 000094, 000102, 000109; id. at

000031 (explaining the Final Rule’s definition of sexual

harassment). The Department also detailed its reliance on and

incorporation of the Gebser/Davis framework. Id. at 000124-31.

The Department explained section 106.45(b)(1)(iv) of the

Final Rule’s presumption of innocence and forbearance of

punishment until the end of the proceedings, id. at 000078, that

to do so is a “fundamental tenant of American justice,” id. at

000207, and “critical for ensuring a fair proceeding,” id. at

000232-33. It explained that section 106.45(b)(1)(v)’s

requirement of “reasonably prompt time frames for conclusion of

the grievance process” is limited to temporary delays and

extensions for good cause, id. at 000074 n.466, 000062-63, that

this would not lead to “endlessly delayed proceedings,” id. at

000222, 000243-48, and the potential for concurrent law

enforcement action to delay the Title IX action, id. at 000246.

The Department detailed its decision in section

106.45(b)(1)(vii) to allow schools to employ either a

preponderance of the evidence or clear and convincing evidence

standard during Title IX hearings. Id. at 000250, 000348. The

Department explained that it chose to allow schools to use the

clear and convincing burden given the “high stakes and

potentially life-altering consequences for both parties” and the

“competing, plausible narratives about the truth of allegations”

often involved in Title IX hearings. Id. at 000348.

The Department explained section 106.45(b)(3)(i)’s

mandatory dismissal provisions as jurisdictional given the

Department’s lack of authority to force schools to “investigate

and adjudicate misconduct that is not covered under Title IX,”

id. at 000264, but explained that this “does not preclude action

under another provision of the recipient’s code of conduct,” id.

at 000416. Similarly, the Department detailed its decision to

revise section 106.45(b)(3)(ii) to make it discretionary rather

than mandatory for a recipient to dismiss a formal complaint

after a respondent has graduated from the school, given that the

recipient will no longer have any disciplinary authority over

the respondent. Id. at 000264.

The Department explained its decision to adopt section

106.45(b)(5)(iii), allowing both the complainant and respondent

to discuss the allegations under investigation, so long as the

discussion is neither tortious nor retaliatory. Id. at 000261,

000269, 000270. Moreover, the Department addressed the concerns

of commenters that the ability freely to discuss the allegations

will harm survivors of sexual assault and chill reporting,

explaining that the restraints it put on the ability to speak

about the allegations balances the interests of gathering

evidence for the hearing and First Amendment rights with the

need for restricting harmful and retaliatory speech. Id. at

000270-72.

The Department detailed its reason for adopting the live

hearing procedures, including the cross-examination requirement.

First, the Department explained that section 106.45(b)(6)(i)

bars the decision maker from drawing any inference of guilt

“based on a party’s failure to appear at the hearing or answer

cross-examination or other questions” because the Department

sought to respect the parties’ Fifth Amendment rights. Id. at

000242-43. The administrative record also clarifies that a

postsecondary institution has the discretion to hold a live

hearing virtually, and where a party refuses to participate, the

school may still proceed with the grievance hearing. Id. at

000245. The Department explains that cross-examination at the

live hearing is limited to “relevant cross-examination

questions.” Id. 000269, 000279. It explained its balance

between cross-examination as a “necessary part of a fair, truth-

seeking grievance process” with safeguards to minimize the

potential for “traumatic effects on the complainants,” id. at

000289-92, 000307-08, and described why it elected to bar

reliance on statements of a party who did not submit to cross-

examination, id. at 000319.

The Department stresses that it is the school which is

“responsible for reaching an accurate determination regarding

responsibility while maintaining impartial[ity],” acknowledging

that Title IX hearings reach “determinations affecting rights of

students and employees under federal Civil Rights law,” and that

hearings are not meant to become courts of law while still

resulting in reliable outcomes. Id. at 000308. The Department

explained its decision to allow parties not to attend a hearing

but still allow the absent party to employ an advisor to cross-

examine the present party. Id. at 000314. With the interest of

a “fair grievance process leading to reliable outcomes, which is

necessary in order to ensure that recipients appropriately

remedy sexual harassment occurring in education programs or

activities,” id. at 000316, in the forefront of the Department’s

mind and efforts, it stressed the importance of cross-

examination to determine the credibility of evidence.

Comparing a Title IX hearing to courts of law, the

Department explained that it did not wish to impose complex

rules of evidence on a hearing’s lay arbiter. Id. at 000320-24.

To avoid adopting “complex” rules of evidence, the Department

elected to create its own bright-line rules of evidence, wherein

the impartial arbiter must not consider any “statement” whose

declarant does not submit to cross-examination. Id. at 000322.

As the Department explains:

The prohibition on reliance on “statements” applies

not only to statements made during the hearing, but

also to any statement of the party or witness who does

not submit to cross-examination. “Statements” has its

ordinary meaning, but would not include evidence (such

as videos) that do not constitute a person’s intent to

make factual assertions, or to the extent that such

evidence does not contain a person’s statements.

Thus, police reports, SANE reports, medical reports,

and other documents and records may not be relied on

to the extent that they contain the statements of a

party or witness who has not submitted to cross-

examination.

Id. at 000324. The administrative record further explains that

“[p]robing the credibility and reliability of statements

asserted by witnesses contained in such evidence,” even those

documented by first responders in the course of their duties,

“requires the parties to have the opportunity to cross-examine

the witnesses making the statements.” Id. The Department,

acknowledging that the parties to a Title IX hearing do not have

subpoena power, reasoned, however, that concerns about essential

witnesses missing the hearing -- therefore barring essential

evidence that falls within the broad definition of statement --

could be assuaged by “thoughtfully working with witnesses

regarding scheduling of a hearing and taking advantage of the

discretion to permit witnesses to testify remotely.” Id. at

000322-23.

For these reasons, the Department explained that it decided

under section 106.45(b)(6)(ii) to require hearings at

postsecondary institutions but to make them discretionary at

elementary and secondary schools because having guardians act on

behalf of younger complainants and respondents is more

reasonable than requiring their cross-examination. Id. at

000309-10.

The Department further explained its decision in section

106.6(h) to give the Final Rule preemptive effect on state and

local laws, explaining that many of the laws that commenters

discussed were not in conflict with the Final Rule because of

Title IX’s narrow scope. See id. at 000429. The administrative

record also detailed the Department’s reasons for distinguishing

First Amendment rights and punishment for material false

statements made in bad faith from the Final Rule’s prohibition

on retaliation in sections 106.71(b)(1) and 106.71(b)(2). Id.

at 000512.5

5 This Court acknowledges and expresses its appreciation for

the briefs amici curiae from the Lawyers’ Committee for Civil

Rights Under Law, American Association for Affirmative Action by

Equal Opportunity Professionals, American Association of

University Women, American Federation of Teachers, AFL-CIO,

American Humanist Association, Autistic Self Advocacy Network,

Education Law Center-PA, GLSEN, Japanese American Citizens

League, Lambda Legal Defense and Education Fund, Inc., League of

United Latin American Citizens, National Alliance for

Partnerships in Equity, National Association of Councils on

Developmental Disabilities, National Center for Parent

IV. RULINGS OF LAW

A. Article III Standing

The Government argues that the Advocates fail to establish

Article III standing. Defs.’ Pretrial Br. 1-9. The Advocates

argue that all the plaintiffs have suffered direct injury from

Leadership, Advocacy and Community Empowerment, National Center

for Special Education in Charter Schools, National Center for

Transgender Equality, National Council of Jewish Women, National

LGBTQ Task Force, Southeast Asia Resource Action Center,

Feminist Majority Foundation, Clearinghouse on Women’s Issues,

AASA, The School Superintendents’ Association, The Council of

the Great City Schools, National Association of Secondary School

Principals, Law Professors, American Council on Education,

Accreditation Council for Pharmacy Education, American

Association of Community Colleges, American Association of State

Colleges and Universities, American Association of University

Professors, American Dental Education Association, American

Indian Higher Education Consortium, Association of American

Medical Colleges, Association of American Universities,

Association of Catholic Colleges and Universities, Association

of Governing Boards of Universities and Colleges, Association of

Jesuit Colleges and Universities, Association of Public and

Land-grant Universities, College and University Professional

Association for Human Resources, Council for Advancement and

Support of Education, Council of Independent Colleges, Middle

States Commission on Higher Education, NASP - Student Affairs

Administrators in Higher Education, National Association of

College and University and Business Officers, National

Association of Diversity Officers in High Education, National

Association of Independent Colleges and Universities, National

Collegiate Athletic Association, New England Commission of

Higher Education, University Risk Management and Insurance

Association, WASC Senior College and University Commission,

Survivors of Sexual Violence, Promundo, American Men’s Studies

Association, CONNECT, Inc., Jana’s Campaign, Inc., Men Stopping

Violence, Men’s Story Project, Men and Masculinities Knowledge

Community, North American MenEngage Network, Ten Men - Rhode

Island Coalition Against Domestic Violence, Vera House, Inc.,

California Women’s Law Center, Members of Congress, Stop Abusive

and Violent Environments, Families Advocating for Campus

Equality, and State of Texas.

the Final Rule and thus satisfy Article III’s requirements.

Pls.’ Pretrial Br. 2-6. For the reasons developed below, this

Court finds and rules that only Mary Doe and Victim Rights have

standing to challenge the Final Rule.

“Article III confines the federal judicial power to the

resolution of ‘Cases’ and ‘Controversies.’ For there to be a

case or controversy under Article III, the plaintiff must have a

‘personal stake’ in the case -- in other words, standing.”

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). “[T]o

establish standing, a plaintiff must show (i) that he suffered

an injury in fact that is concrete, particularized, and actual

or imminent; (ii) that the injury was likely caused by the

defendant; and (iii) that the injury would likely be redressed

by judicial relief.” Id. (citing Lujan v. Defs. of Wildlife,

504 U.S. 555, 560-61 (1992)). Turning first to whether an

alleged injury is concrete, particularized, and actual or

imminent, the plaintiff must show that “he personally has

suffered some actual or threatened injury . . . .” Valley Forge

Christian Coll. v. Am. United for Separation of Church & State,

454 U.S. 464, 472 (1982) (quotations omitted). “Requiring a

plaintiff to demonstrate a concrete and particularized injury

caused by the defendant and redressable by the court ensures

that federal courts decide only the rights of individuals,” and

that federal courts exercise “their proper function in a limited

and separated government.” TransUnion LLC, 141 S. Ct. at 2203

(citations and quotations omitted). “Concreteness and

particularity are two separate requirements.” Lyman v. Baker,

954 F.3d 351, 360 (1st Cir. 2020) (citing Spokeo, Inc. v.

Robins, 136 S. Ct. 1540, 1545 (2016)). An injury is “concrete”

when it “actually exist[s].” Id. (quotations omitted). An

injury is “particularized” when it “affect[s] the plaintiff in a

personal and individual way,” Lujan, 504 U.S. at 560 n.1, that

goes beyond widely shared “generalized grievances about the

conduct of government,” Lyman, 954 F.3d at 361 (citing Becker v.

Fed. Election Comm’n, 230 F.3d 381, 390 (1st Cir. 2000)). An

imminent injury is one where the threatened harm is “certainly

impending,” as opposed to mere “allegations of possible future

injury.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)

(brackets and emphases omitted); Lujan, 504 U.S. at 564 n.2.

Allegations of future harm absent any demonstration that said

future harm is “certainly impending” is too speculative to

satisfy Article III. Clapper, 568 U.S. at 401, 409.

Next, to satisfy Article III standing, the injury must be

traceable to the challenged action of the defendant. Lujan, 504

U.S. at 560. This “traceability” element, essentially a

causation element of Article III standing, “requires the

plaintiff to show a sufficiently direct causal connection

between the challenged action and the identified harm.”

Dantzler, Inc. v. Empresas Berríos Inventory & Operations, Inc.,

958 F.3d 38, 47 (1st Cir. 2020) (quoting Katz v. Pershing, LLC,

672 F.3d 64, 71 (1st Cir. 2012)). Although an indirect causal

relationship is not necessarily fatal, an injury is less likely

to satisfy this requirement where the causal chain between the

defendant’s action and the alleged harm depends on the actions

of a third party. See id. at 48 (citing Allen v. Wright, 468

U.S. 737, 757-59 (1984); Simon v. E. Kentucky Welfare Rights

Org., 426 U.S. 26, 42-45 (1976)).

Finally, the injury must be redressable by a favorable

ruling. Lujan, 504 U.S. at 561. A favorable ruling need not

redress the entire injury, but the plaintiff must demonstrate

that a favorable ruling will at least lessen the injury. See

Antilles Cement Corp. v. Fortuño, 670 F.3d 310, 318 (1st Cir.

2012).

1. The Individual Plaintiffs

Only one of the three individual plaintiffs demonstrates

standing. Mary Doe has an ongoing Title IX investigation that

occurred after the Final Rule’s effective date. Decl. Mary Doe,

¶ 27. Mary’s university is applying (or attempting to apply)

the Final Rule, and those provisions not yet employed are

certainly impending because the Final Rule prescribes the

university’s conduct. See 34 C.F.R. § 106.11 (“[T]his part 106

applies to every recipient and to the education program or

activity operated by such recipient which receives Federal

financial assistance.”). The Government’s argument that the

effect of the Final Rule remains speculative is meritless. See

Defs.’ Pretrial Br. 2-3. Mary’s injury is her treatment thus

far under the Final Rule’s regime. Moreover, the fact that her

hearing has yet to occur after ten months and many delays does

not render her injuries speculative because the delay is an

injury in and of itself and a product of the Final Rule.

The Government’s alternative arguments that Mary’s injury

is neither traceable to the Final Rule nor redressable similarly

fail. See Defs.’ Pretrial Br. 3-4. This is not an indirect

causation injury. See Allen, 468 U.S. at 757-59; Simon, 426

U.S. at 42-45. Mary is challenging whether the Department’s

prescribed behavior under the Final Rule ought be applied to her

ongoing Title IX investigation -- not her school’s independent

policies and practices. See Decl. Mary Doe ¶¶ 19-48. A

favorable ruling that some or all of the challenged regulations

are invalid will, therefore, at least lessen her injury. See

Antilles Cement Corp., 670 F.3d at 318.

Nancy Doe and Jane Doe, however, both fail to demonstrate

standing. Although Nancy Doe has an ongoing Title IX

investigation, the incident under investigation occurred in

2018. Decl. Nancy Doe ¶¶ 9, 38-39. The Final Rule states that

“the Department will not enforce these final regulations

retroactively.” 85 Fed. Reg. at 30,061; Administrative R. at

000036. Nancy has not demonstrated that her university will

apply the Final Rule to her investigation, Decl. Nancy Doe

¶¶ 42-43, and guidance from the Department explained that the

Final Rule “will not be enforced retroactively, so to the extent

that [documents detailing prior guidance] are helpful to

recipients for appropriately responding to sexual harassment

that allegedly occurred prior to August 14, 2020, they will

remain accessible on the Department’s website,” U.S. Dep’t of

Educ., OCR Letter to Educators and Stakeholders (Aug. 26, 2020)

(“August 26 Letter”) 2, https://www2.ed.gov/policy/gen/guid/fr-

200826-letter.pdf. Accordingly, Nancy has not suffered a

cognizable injury from the Final Rule and lacks standing.6 See

Valley Forge Christian Coll., 454 U.S. at 472.

Similarly, Jane Doe has not suffered a cognizable injury.

See id.; Decl. Jane Doe ¶¶ 1-3. Jane’s guardian has not

6 This Court does not reach the question whether a school

may apply the Final Rule retroactively. The Advocates argue

that the Final Rule might still be applied because schools are

unlikely or unable to maintain two separate approaches, despite

the language of the Final Rule and the Department’s subsequent

guidance. See Pls.’ Pretrial Br. 4-6. The Advocates, however,

fail to establish that any school associated with a named

complainant or organization intends to apply the Final Rule to

incidents that occurred prior to August 14, 2020. Therefore,

whether a recipient may apply the Final Rule retroactively and

disregard the Final Rule’s language and the Department’s August

26 letter is neither ripe nor engendered by the facts before

this Court.

initiated a Title IX investigation. Decl. Jane Doe ¶¶ 16-18.

Even if Jane’s guardian initiated an investigation, the

incidents of assault occurred before the effective date, so the

Final Rule ought not apply, Administrative R. at 000036, and

there is no evidence that Jane’s school will apply the Final

Rule.7 See id. ¶¶ 2-18. Accordingly, Jane lacks standing to

challenge the Final Rule. See Valley Forge Christian Coll., 454

U.S. at 472.

2. No Other Adequate Remedy

The Government alternatively argues that Mary Doe “has an

adequate alternative remedy in the form of a suit against her

school to the extent that she challenges discretionary actions

not required by the [Final] Rule.” Defs.’ Pretrial Br. 4. The

Government’s argument, however, misses the mark.

As title 5, section 704 of the U.S. Code provides, “Agency

action made reviewable by statute and final agency action for

7 The Advocates proffered the declaration of Elizabeth

Collins who serves as an Education Consultant, the Civil Rights

Compliance Coordinator, and Methods of Administration and Title

IX Coordinator at the Michigan Department of Education. Mot.

Prelim. Inj., Ex. O, Decl. Elizabeth Collins ¶ 1, ECF No. 32-15.

Collins expresses doubts about schools’ effectiveness in

maintaining two separate approaches for Title IX investigations

before and after the Final Rule’s effective date and the

potential for confusion this could cause. See id. ¶ 22.

Nevertheless, the effectiveness of and potential confusion from

maintaining two approaches does not demonstrate that any school

plans to deviate from the Department’s directive and apply the

Final Rule to incidents before the effective date.

which there is no other adequate remedy in a court are subject

to judicial review.” 5 U.S.C. § 704. The Final Rule is a

product of the Department’s rulemaking, a final agency action.

See 5 U.S.C. § 551(13); Bennet v. Spear, 520 U.S. 154, 177-78

(1997). The Government, however, maintains that Mary’s injuries

are caused not by the Final Rule, but rather by her school’s

incorrect application of the Final Rule to her investigation.

Defs.’ Pretrial Br. 2-4. This is, in part, true. For example,

Mary’s school has incorrectly maintained that she must attend

the hearing and may not sit in a different room from her

assailant during her hearing. Decl. Mary Doe ¶ 20. But Mary’s

injuries do not arise solely or even predominantly from her

school’s misperceptions of the Final Rule. Mary’s injuries

arise chiefly from the Final Rule itself. As other courts have

held in nearly identical circumstances, “[b]ased on [Mary]’s

alleged injuries and the nature of the relief sought, the

alternative remedy offered by the Department -- suing individual

schools -- offers only ‘doubtful and limited relief,’ and is

therefore an inadequate remedy under the APA.” SurvJustice Inc.

v. DeVos, Case No. 18-cv-00535-JSC, 2018 WL 4770741 (N.D. Cal.

Oct. 1, 2018), at *6-7 (citing Bowen v. Massachusetts, 487 U.S.

879, 901 (1988) (“[D]oubtful and limited relief . . . is not an

adequate substitute” sufficient to bar review under Section

704)), order amended on reconsideration, Case No. 18-cv-00535-

JSC, 2019 WL 1434144 (N.D. Cal. Mar. 29, 2019).

3. The Organizational Plaintiffs

An advocacy organization may demonstrate standing “if its

mission has been ‘frustrated’ by the challenged conduct and it

has expended resources to combat it.” Equal Means Equal v.

Dep’t of Educ., 450 F. Supp. 3d 1, 7 (D. Mass. 2020) (Saris,

C.J.) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363

(1982)), appeal dismissed sub nom. Doe v. U.S. Dep’t of Educ.,

No. 20-1429, 2020 WL 6039917 (1st Cir. June 22, 2020)).

“However, the Supreme Court has also held that simply expending

resources based on an anticipated harm is not enough to

establish standing.” See id. (citing Clapper, 568 U.S. at 398).

Here, only Victim Rights demonstrates that it has standing to

challenge the Final Rule. See id.; Decl. Victim Rights ¶ 9.

To satisfy the first prong, frustration of purpose, the

organization must demonstrate an impairment to its mission

caused by the Final Rule. See SurvJustice Inc., 2018 WL

4770741, at *6; Equal Means Equal, 450 F. Supp. 3d at 7; see

also Know Your IX v. DeVos, Civil Action No. RDB-20-01224, 2020

WL 6150935, at *5 (D. Md. Oct. 20, 2020) (citing CASA de Md.,

Inc. v. Trump, 971 F.3d 220, 238-41 (4th Cir. 2020)). The

Government correctly argues that diverting resources from daily

operations, delaying programing, reallocating staff, updating

educational material, and spending time analyzing the Final Rule

to continue serving victims in accordance with their missions do

not qualify as frustrating an organization’s purpose. See

Defs.’ Pretrial Br. 6-9; SurvJustice, 2018 WL 4770741, at *6-7;

Equal Means Equal, 450 F. Supp. 3d at 7; Decl. Chicago Alliance

¶¶ 9-19; Decl. Victim Rights ¶¶ 8, 10-31; Decl. Equal Rights ¶¶

8-26; Decl. Legal Voice ¶¶ 9-20; see also Know Your IX, 2020 WL

6150935, at *5 (quoting CASA de Md., 971 F.3d at 239

(“[R]esource reallocations, although they may be motivated by

sincere policy preferences, ‘are not cognizable organizational

injuries because no action by the defendant has directly

impaired the organization’s ability to operate and to

function.’”)).

Victim Rights, however, demonstrates a direct impairment

from the Final Rule -- it has experienced unwillingness and

hesitancy from student victims to continue their Title IX

complaints because of the Final Rule’s cross-examination

provisions. See Decl. Victim Rights ¶ 9. This impairment

qualifies as a frustration of purpose because Victim Rights, an

organization focused on assisting victims through the Title IX

process, has experienced a reduction in requests for its

services. Id. ¶¶ 4-6, 9; compare SurvJustice Inc., 2018 WL

4770741, at *6-7, with Know Your IX, 2020 WL 6150935, at *5, and

Equal Means Equal, 450 F. Supp. 3d at 7. “Such concrete and

demonstrable injury to the organization’s activities -- with the

consequent drain on the organization’s resources -- constitutes

far more than simply a setback to the organization’s abstract

social interests.” Havens Realty Corp., 455 U.S. at 379

(citation omitted). Conversely, Equal Rights Advocates, Legal

Voice, and Chicago Alliance fail to demonstrate such an

impairment and merely describe their attempts to reallocate

resources under the Final Rule. See SurvJustice, 2018 WL

4770741, at *6-*; Know Your IX, 2020 WL 6150935, at *5; Equal

Means Equal, 450 F. Supp. 3d at 7-8 (“Plaintiffs do not allege

that there has been an observed decrease in student-filed

complaints, nor do they allege that students have expressed

unwillingness to file claims because of the [Final Rule].”).

Victim Rights also satisfies the second prong -- “a

consequent drain on the organization’s resources.” Havens

Realty Corp., 455 U.S. at 379. Victim Rights demonstrates that

it has diverted resources in the form of reassignments, creating

new material for clients, and spending more time advising

clients. See Victim Rights Decl. ¶¶ 9-11; see also Havens

Realty Corp., 455 U.S. at 379; Equal Means Equal, 450 F. Supp.

3d at 8-9; SurvJustice, 2018 WL 4770741, at *7-8.

Accordingly, Victim Rights is the only Organizational

Plaintiff with standing.

B. Challenges to the Final Rule

In count I, the Advocates argue that thirteen provisions of

the Final Rule are not in accordance with law because they

effectively undermine the purpose of Title IX.8 See Second Am.

Compl. ¶¶ 267-271. In count II, the Advocates argue that the

same thirteen provisions of the Final Rule are arbitrary or

capricious. See id. ¶¶ 272-276; Pls.’ Mem. Supp. Their Mot.

Prelim. Inj. or Section 705 Stay (“Pls.’ Mem. Supp. Mot. Prelim.

Inj.”) 8-20, ECF No. 32; Pls.’ Pretrial Br. 8-12. Throughout

their briefing, however, the Advocates conflate these distinct

standards. See Pls.’ Mem. Supp. Mot. Prelim. Inj. 8-20; Pls.’

Reply Supp. Their Mot. Prelim. Inj. or Section 705 Stay 13-20,

ECF No. 98. Whether the Department’s actions undermine Title IX

necessarily requires interpretation of Title IX, because the

Department relies on its interpretation of Title IX to support

its actions. See Holland v. Nat’l Mining Ass’n, 309 F.3d 808,

815 (D.C. Cir. 2002) (“In reviewing an agency’s statutory

interpretation under the APA’s ‘not in accordance with law’

standard, we adhere to the familiar two-step test of Chevron

[USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

8 The thirteen challenged provisions are sections 106.30,

106.44(a), 106.45(b)(1)(iv), 106.45(b)(1)(v), 106.45(b)(1)(vii),

106.45(b)(3)(i), 106.45(b)(3)(ii), 106.45(b)(5)(iii),

106.45(b)(6)(i), 106.45(b)(6)(ii), 106.6(h), 106.7(b)(1), and

106.71(b)(2). Second Am. Compl. ¶ 271.

837 (1984)], provided that the conditions for such review are

met.”). Therefore, this Court analyzes count I with count III,

under which the Advocates argue that six provisions of the Final

Rule exceed the Department’s statutory authority.9 See Second

Am. Compl. ¶¶ 277-283; see also Samma v. U.S. Dep’t of Def., 486

F. Supp. 3d 240, 275 n.39 (D.D.C. 2020) (stating that claims

under sections 706(2)(A) and 706(2)(C) “are essentially the

same”).

In count IV, the Advocates argue that five provisions of

the Final Rule are not logical outgrowths of the Proposed Rule,10

Second Am. Compl. ¶¶ 284-288, and in count V, the Advocates

argue that the thirteen provisions challenged in counts I and II

violate the Equal Protection Clause of the Fifth Amendment

because they discriminate against women, id. ¶¶ 289-293.

1. Counts I & III: Not in Accordance with Law and in

Violation of Statutory Authority11

The Advocates argue that thirteen provisions of the Final

Rule are invalid because they are not in accordance with law,

9 The six challenged provisions are sections 106.30,

106.45(b)(1)(iv), 106.45(b)(3), 106.45(b)(6)(i), 106.71(b)(1),

and 106.71(b)(2). Second Am. Compl. ¶ 283.

10 The five challenged provisions are 106.30,

106.45(b)(3)(ii), 106.45(b)(6)(i), 106.6(h), and 106.71(b)(1).

Second Am. Compl. ¶ 288.

11 Having ruled below that section 106.45(b)(6)(i) is

arbitrary and capricious, see infra Section IV.B.2.b., this

and that six of those thirteen provisions are alternatively

invalid because they exceed the Department’s “statutory

jurisdiction, authority, or limitations . . . .” See Second Am.

Compl. ¶¶ 267-271, 277-283; 5 U.S.C. §§ 706(2)(A), (C).

Section 706(2)(A) of the APA provides that a reviewing

court must “hold unlawful and set aside agency action . . .

found to be . . . arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law . . . .” 5 U.S.C. §

706(2)(A). Section 706(2)(C) of the APA provides that a

reviewing court must “hold unlawful and set aside agency action

. . . found to be . . . in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right.” Id.

§ 706(2)(C). This is a linguistic distinction without a

practical difference. As the Supreme Court explained:

The reality, laid bare, is that there is no

difference, insofar as the validity of agency action

is concerned, between an agency’s exceeding the scope

of its authority (its “jurisdiction”) and its

exceeding authorized application of authority that it

unquestionably has. “To exceed authorized application

is to exceed authority. Virtually any administrative

action can be characterized as either the one or the

other, depending on how generally one wishes to

describe the ‘authority.’”

Court’s decision does not reach whether the Final Rule would be

either in accordance with law or in excess of statutory

authority if the Department were to reinstate section

106.45(b)(6)(i) with the statutorily required reasoning. If

that should happen, the Advocates are rightfully free to

challenge whether the Department’s interpretation of Title IX to

permit such defects satisfies Chevron.

City of Arlington v. F.C.C., 569 U.S. 290, 299, (2013) (quoting

Mississippi Power & Light Co. v. Miss. ex rel. Moore, 487 U.S.

354, 381 (1988) (Scalia, J., concurring)).

“When an issue ‘turns on questions implicating an agency’s

construction of the statute which it administers,’” a reviewing

court must “‘apply the principles of deference described

in Chevron . . . .’” Massachusetts Dep’t of Telecomms. & Cable

v. Fed. Commc’ns Comm’n, 983 F.3d 28, 34 (1st Cir. 2020)

(quoting Garcia v. Sessions, 856 F.3d 27, 35 (1st Cir. 2017)).

Under the Chevron framework, this Court must first “ask whether

‘Congress has directly spoken to the precise question at issue.’

If so, courts, as well as the agency, ‘must give effect to the

unambiguously expressed intent of Congress.’” Succar v.

Ashcroft, 394 F.3d 8, 22 (1st Cir. 2005) (citation omitted)

(quoting Chevron, 467 U.S. at 842-43). “[I]f the statute is

silent or ambiguous with respect to the specific issue,”

however, this Court must ask “whether the agency’s

[interpretation] is based on a permissible construction of the

statute.” Chevron, 467 U.S. at 843. An agency’s construction

is permissible so long as it is “rational and consistent with

the statute.” Sullivan v. Everhart, 494 U.S. 83, 89 (1990)

(quotations omitted). “‘[I]f the implementing agency’s

construction is reasonable, Chevron requires a federal court to

accept the agency’s construction . . . .’” Massachusetts Dep’t

of Telecomms. & Cable, 983 F.3d at 34 (quoting Nat’l Cable &

Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980

(2005)).

a. The Department’s Interpretation of the Scope

of Title IX is Reasonable and Appropriate.

Title IX provides in relevant part that “[n]o person in the

United States shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving

Federal financial assistance . . . .” 20 U.S.C. § 1681(a). The

Department has the authority administratively to enforce Title

IX, so long as the regulations are “consistent with achievement

of the objectives of” Title IX. Id.; see Gebser, 524 U.S. at

292 (“Agencies generally have authority to promulgate and

enforce requirements that effectuate the statute’s

nondiscrimination mandate, 20 U.S.C. § 1682, even if those

requirements do not purport to represent a definition of

discrimination under the statute.”).

The Advocates’ argument begins with the premise that

because sexual harassment is a recognized form of sex

discrimination, Title IX requires recipients to ensure that

victims are not excluded from participating in education

programs or activities because of sexual harassment. See Pls.’

Mem. Supp. Mot. Prelim. Inj. 20. The Department does not

dispute this basic premise and acknowledges its obligation to

address sexual harassment throughout the record before this

Court. See Final Rule § 106.30(a) (defining sexual harassment).

The Advocates contend, however, that the Department

“exceeds Title IX’s nondiscrimination mandate by issuing

regulations that require schools not to protect students from

discrimination and that weaken schools’ ability to deter such

discrimination.” Pls.’ Pretrial Br. 12. The Advocates maintain

that the Department abdicated its duty to enforce Title IX by

undermining its charge and leaving victims without redress when

it promulgated a rule that narrowed Title IX’s scope. The

Department responds that it is empowered to interpret the scope

of Title IX, and that such interpretation is afforded

substantial deference under Chevron. See Defs.’ Opp’n Pls.’

Mot. Prelim. Inj. or Section 705 Stay 21, ECF No. 96.

Under Chevron, this Court first must determine whether

Title IX is ambiguous or instead provides clear guidance on the

physical and interpersonal scope of Title IX. Congress has not

“directly spoken to the precise question” of Title IX’s physical

(i.e., where) and interpersonal (i.e., who) scope. See 20

U.S.C. § 1681; see generally Succar, 394 F.3d at 22 (quoting

Chevron, 467 U.S. at 842-43). The Department interpreted Title

IX’s language -- “under any education program or activity

receiving Federal financial assistance” -- as a limit on Title

IX. See Final Rule § 106.45(b)(3) (“If the conduct alleged . .

. did not occur in the recipient’s education program or activity

. . . then the recipient must dismiss the formal complaint with

regard to that conduct for purposes of sexual harassment under

[T]itle IX . . . .”). Although Congress explained what

qualifies as a “program or activity,” it was silent on whether

these enumerated categories were meant to serve as necessary or

sufficient conditions for Title IX to apply. See 20 U.S.C.

§ 1687 (“Interpretation of ‘program or activity’”); 20 U.S.C.

§ 1681. Therefore, Title IX is “silent or ambiguous with

respect to the specific issue,” and this Court’s review of the

Department’s interpretation is limited to “whether the agency’s

[interpretation] is based on a permissible construction of the

statute.” See Chevron, 467 U.S. at 843. Interpreting the

enumerated categories as a limit to Title IX’s jurisdiction is

reasonable and supported by the maxim “expression unius est

exclusion alterius.” See, e.g., In re Smith, 910 F.3d 576, 583

(1st Cir. 2018) (“[T]he expression of one thing is the exclusion

of other things.”) Accordingly, this Court finds this

interpretation of Title IX to be “rational and consistent with

the statute” and affords the Department’s interpretation

deference. See Sullivan, 494 U.S. at 89; Massachusetts Dep’t of

Telecomms. & Cable, 983 F.3d at 34 (quoting Brand X Internet

Servs., 545 U.S. at 980 (2005)).

b. The Department’s Interpretation of Sex

Discrimination is Reasonable and

Appropriate.

Similarly, Title IX is silent on what conduct constitutes

sex discrimination. See 20 U.S.C. § 1681 (“No person in the

United States shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to

discrimination . . . .”). Therefore, this Court’s review of the

Department’s interpretation of “sex discrimination” to be

limited to “sexual harassment” as defined by the Final Rule is

restricted to “whether the agency’s [interpretation] is based on

a permissible construction of the statute.” See Chevron, 467

U.S. at 843. The Department interpreted Title IX’s prohibited

sex discrimination to encompass only (1) quid pro quo sexual

conduct, (2) “[u]nwelcome conduct determined by a reasonable

person to be so severe, pervasive, and objectively offensive

that it effectively denies a person equal access to the

recipient’s education program or activity,” and (3) “Sexual

assault . . . dating violence . . . domestic violence . . . and

stalking,” as defined in other provisions of the U.S. Code.

Final Rule § 106.30. As detailed in the administrative record,

the Department used the Gebser/Davis framework to formulate

components of the Final Rule, including the definition of sexual

harassment. Administrative R. at 000124-31. The Department

reasoned that “the Supreme Court’s framework provides the

appropriate starting point for administrative enforcement of

Title IX, with adaptions of that framework to hold recipients

responsible for more than what the Gebser/Davis framework alone

would require.” Id. at 000124. Furthermore, the Department

reasoned that the interests of consistency throughout Title IX

and the differences between complainants and respondents under

Title IX and Title VII warrant the narrower definition of

actionable sexual harassment. Id. at 000124-31. Accordingly,

this Court finds this interpretation of actionable conduct under

Title IX to be “rational and consistent with the statute” and

affords the Department’s interpretation deference. See

Sullivan, 494 U.S. at 89; Massachusetts Dep’t of Telecomms. &

Cable, 983 F.3d at 34 (quoting Brand X Internet Servs., 545 U.S.

at 980 (2005)).

2. Count II: Arbitrary and Capricious

Under section 706(2)(A) of the APA, this Court must “hold

unlawful and set aside agency action, findings, and conclusions

found to be . . . arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law . . . .” 5 U.S.C.

§ 706(2)(A). Actions that are arbitrary and capricious fail

because they are procedurally defective. See Union of Concerned

Scientists v. Wheeler, 954 F.3d 11, 19 (1st Cir. 2020) (citing

Massachusetts v. U.S. Nuclear Regul. Comm’n, 708 F.3d 63, 73

(1st Cir. 2013); H.R. Rep. No. 1980, at 276 (1946) (explaining

that in order to prevail under § 706 a complainant “must show

that the action is contrary to law in either substance or

procedure”). As the First Circuit explains:

A decision is arbitrary and capricious “if the agency

has relied on factors which Congress has not intended

it to consider, entirely failed to consider an

important aspect of the problem, offered an

explanation for its decision that runs counter to the

evidence before the agency, or is so implausible that

it could not be ascribed to a difference in view or

the product of agency expertise.”

Craker v. Drug Enf’t Admin., 714 F.3d 17, 26 (1st Cir. 2013)

(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43 (1983)). Such review is “narrow,” “highly

deferential,” and a court “may not substitute its judgment for

that of the agency, even if it disagrees with the agency’s

conclusions.” River St. Donuts, LLC v. Napolitano, 558 F.3d

111, 114 (1st Cir. 2009). The agency’s final determination is

afforded a presumption of validity, id., and the burden falls on

the party challenging the regulation to demonstrate that the

regulation fails to comply with the APA. M/V Cape Ann v. United

States, 199 F.3d 61, 63 (1st Cir. 1999).

Moreover, “[a]gencies are free to change their existing

policies as long as they provide a reasoned explanation for the

change.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117,

2125 (2016). This explanation “need not demonstrate to a

court’s satisfaction that the reasons for the new policy

are better than the reasons for the old one.” F.C.C. v. Fox

Television Stations, Inc., 556 U.S. 502, 515 (2009). Yet, the

agency must ordinarily “display awareness that it is changing

position” and “show that there are good reasons for the new

policy.” Id.; see also National Labor Relations Bd. v. Lily

Transp. Corp., 853 F.3d 31, 36 (1st Cir. 2017).

There are at least two situations in which an agency must

provide “a more detailed justification” for a change in policy:

(1) when “its new policy rests upon factual findings that

contradict those which underlay its prior policy;” and (2) “when

its prior policy has engendered serious reliance interests that

must be taken into account.” Fox Television Stations, Inc., 556

U.S. at 515. In the latter case, the agency is required to

assess the reliance interests and weigh them against competing

policy concerns. Dep’t of Homeland Sec. v. Regents of the Univ.

of Cal., 140 S. Ct. 1891, 1915 (2020); see also Encino

Motorcars, LLC, 136 S. Ct. at 2127.

Although significant, Chevron deference does not make this

Court a mere “rubber stamp” for administrative actions. See

Fed. Labor Relations Auth. v. Aberdeen Proving Ground, Dep’t of

the Army, 485 U.S. 409, 414 (1988). This Court still must

determine whether the agency action “was consonant with [the

agency’s] statutory powers, reasoned, . . . supported by

substantial evidence in the record,” Associated Fisheries of

Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997), and

limited to the information available to the agency at the time

it took action, see Valley Citizens for a Safe Env’t v.

Aldridge, 969 F.2d 1315, 1319 (1st Cir. 1992). Accordingly, the

agency must “‘articulate a satisfactory explanation for its

action including a rational connection between the facts found

and the choice made.’” Grosso v. Surface Transp. Bd., 804 F.3d

110, 116 (1st Cir. 2015) (quotations omitted) (quoting State

Farm Mut. Auto. Ins. Co., 463 U.S. at 43).

a. Most of the Arbitrary and Capricious

Challenges Fail.

The Advocates first argue that the Department failed to

consider their reliance interests because the Final Rule

required schools to implement the new procedures quickly and

because the application of the Final Rule to individual

plaintiffs with ongoing investigations changed their rights.

See Pls.’ Mem. Supp. Mot. Prelim. Inj. 20. This argument is

meritless. First and foremost, none of the plaintiffs are

schools. See generally Second Am. Compl. Therefore, how

quickly and when the Department required schools to implement

the Final Rule is not before this Court. Victim Rights, the

only organization with standing, does not have rights under a

pending investigation, and Mary Doe’s incident and investigation

both occurred after the Final Rule took effect on August 14,

2020, Decl. Mary Doe ¶¶ 2-8, 27, so Mary’s rights are not

changed by the Final Rule.

The Advocates also argue that the Department ignored

evidence before it that the Final Rule will “re-traumatize

victims, chill reporting, and undermine Title IX’s

antidiscrimination mandate.” See Pls.’ Mem. Supp. Mot. Prelim.

Inj. 17-18. Similarly, this argument is unavailing. The

Advocates cite to the testimony of their expert on preventing

sexual harassment and gender-based violence. Id. & n.65. The

Department, however, disagreed with the expert’s assessment of

the Final Rule and explained that it had designed safeguards

adequately to balance the potential negative effects of chilling

reports and retraumatization with the goal of establishing a

reliable fact-finding process through which schools could take

appropriate action.12 See Administrative R. at 000289-92,

000307-08, 000316. In light of the record, “the Court is not

convinced that there is relevant evidence in the record to which

the [Department] has shut its eyes.” See Delta Air Lines, Inc.

v. Exp.-Imp. Bank of U.S., 85 F. Supp. 3d 436, 476 (D.D.C. 2015)

(quotations omitted). The Department’s “refusal to adopt the

12 This is not an easy balancing act, as Negar Katirai

vividly details in her article, Retraumatized in Court, 62 Ariz.

L. Rev. 81, 83-111 (2020), adversarial and formalistic processes

focused predominantly on physical harm can create environments

rife with pitfalls for retraumatization and have a chilling

effect on victims bringing their claims.

approach that [the Advocates] prefer, and which no doubt would

be more favorable to [the Advocates’] interests, does not, by

itself, make the [Department’s] actions arbitrary and

capricious.” See id. at 477.

The Advocates go on to argue that the narrowed definition

of sexual harassment, the provisions prohibiting schools from

investigating sexual harassment occurring outside an education

program or activity and requiring complainants to be enrolled or

attempting to attend the school’s programs or activities, the

grievance procedures, the presumption of innocence, and the

heightened notice requirement are all arbitrary and capricious.

Pls.’ Reply 14-20. Having considered each of the Advocates’

arguments, the administrative record, and the admitted

declarations, this Court finds and rules that, with the

exception of Section 106.45(b)(6)(i), the Agency adequately

considered each of the challenged provisions. See River St.

Donuts, LLC, 558 F.3d at 114. Most of the Advocates’ arguments

boil down to policy debates regarding the best way to protect

victims, the balance between vindicating victim rights and

protecting respondent rights, and what the scope of Title IX

ought be. See Pls.’ Reply 14-20. Regardless the vigor with

which they are argued, substantive policy arguments are

insufficient to overcome the presumption of validity.

Arbitrary and capricious review is a procedural review -- a

“hard look” at whether the agency weighed a decision’s necessary

corollaries -- not whether this Court normatively agrees with

the corollaries’ ascribed weight. See Fox Television Stations,

556 U.S. at 515; Union of Concerned Scientists, 954 F.3d at 19;

River St. Donuts, LLC, 558 F.3d at 114. This Court cannot and

will not substitute its own judgment, or the Advocates’

judgment, for that of the Department. See River St. Donuts,

LLC, 558 F.3d at 114; see also Nikol Oydanich, Note, Chief

Justice Roberts's Hard Look Review, 89 Fordham L. Rev. 1635, 1647

(2021) (“[A]rbitrary and capricious review under State Farm

requires the Court to be unconcerned with the wisdom of [the

agency’s action].”).

As discussed in Section III.B., supra, the Department

considered each of the provisions individually and explained why

each rule supported the Department’s major aim. The Department

further explained why it formulated each of the provisions in

the manner it did, why it rejected many proposed alternatives,

and why many of the concerns raised by the commenters were

inapt. See supra Section III.B.

b. Section 106.45(b)(6)(i)’s Prohibition on All

Statements Not Subject to Cross-Examination

is Arbitrary and Capricious.

Nevertheless, in the Department’s review of the Final

Rule’s individual provisions, it failed to consider the

consequences of section 106.45(6)(i)’s prohibition on statements

not subject to cross-examination in conjunction with the other

challenged provisions. Neither the Government’s briefing nor

this Court’s thorough review of the record indicates that the

Department considered or adequately explained why it intended

for section 106.45(6)(i) to compound with a respondent’s

procedural safeguards quickly to render the most vital and

ultimate hallmark of the investigation -- the hearing -- a

remarkably hollow gesture.

Under a plain reading of the Final Rule’s hearing

provisions, a respondent may work with the school to schedule

the live hearing, and nothing in the Final Rule or

administrative record prevents him or her from doing so to

further a disruptive agenda -- e.g., at an inopportune time for

third-party witnesses. The respondent may elect not to attend

the hearing to avoid the possibility of self-incrimination, and,

so long as he or she does not do so in a tortious or retaliatory

manner, the respondent may speak freely to his or her peers

about the investigation to collect evidence or even to persuade

other witnesses not to attend the hearing. See id. §§

106.45(b)(6)(i)-(ii), 106.45(b)(5)(iii). The respondent could

then rest easy knowing that the school could not subpoena other

witnesses to appear, Administrative R. at 000322-23, despite the

school bearing the “responsibil[ity] for reaching an accurate

determination regarding responsibility while maintaining

impartial[ity],” id. at 000308.

When section 106.45(b)(6)(i)’s statement prohibition is

applied (as it must be, pursuant to the Final Rule) alongside

these exercised rights, the hearing officer is prohibited from

hearing any evidence other than the testimony of the

complainant, and the hearing officer cannot draw a negative

inference from the absence of the respondent, see

106.45(b)(6)(i); Administrative R. at 000242-43 -- no police

reports, no medical history, no admissions by the respondent, no

statements by anyone who witnessed the incident and either could

not attend or was dissuaded from attending by the respondent.

See Administrative R. at 000324. While the complainant must

attend the hearing for his or her evidence to be admitted, he or

she can be cross-examined and discredited by the absent

respondent’s attorney, id. at 000314, with little to no hope of

evidentiary rehabilitation. When the foregoing occurs and the

school has elected to apply the clear and convincing evidence

standard given the “high stakes and potentially life-altering

consequences for both parties,” id. at 000348; Final Rule

§ 106.45(b)(1)(vii), this Court is hard pressed to imagine how a

complainant reasonably could overcome the presumption of non-

responsibility to attain anything beyond the supportive measures

that he or she is offered when they first file the formal

complaint. See Final Rule §§ 106.30(a)(3), 106.44(a).

This is not some extreme outlier or fanciful scenario. No

attorney worth her salt, recognizing that -- were her client

simply not to show up for the hearing -- an ironclad bar would

descend, suppressing any inculpatory statements13 her client

might have made to the police or third parties, would hesitate

so to advise. See generally Thomas A. Mauet, Trial Techniques

86-87 (4th ed. 1996) (discussing trial tactics when deciding

whether to volunteer weaknesses in one’s testimony and case);

James W. Jeans, Trial Advocacy § 2.10 (1975) (discussing

selective interrogation). It is not this Court’s place, given

the breadth and deference of the Chevron doctrine, to strike

down section 106.45(b)(6)(1) merely because it finds this result

manifestly unreasonable. It is, however, this Court’s

responsibility under section 706(2)(A) of the APA to ensure that

the Department considered this necessary and likely consequence

of section 106.45(b)(6)(1) and require the agency to provide a

reasoned explanation why it nevertheless intended this result.

Nothing in the administrative record demonstrates that the

Department was aware of this result, considered its possibility,

or intended this effect. Moreover, the construction of the

13 Admissions and confessions are “statements” under the

Final Rule. See Administrative R. at 000324.

Final Rule suggests that the Department failed even implicitly

to recognize this result.

The Department goes to great lengths to solidify the

hearing as the hallmark of the Title IX process, essential to

the goals of fact finding, weighing credibility, and a “fair

grievance process leading to reliable outcomes, which is

necessary in order to ensure that recipients appropriately

remedy sexual harassment occurring in education programs or

activities.” Administrative R. at 000316, 000319. To so

carefully balance and craft the respondent’s safeguards, the

definitions, the burdens, and the policies in the run-up to the

hearing, just to have the prohibition and definition of absentee

statements render the hearing a hollow exercise further

demonstrates that the Department failed, even implicitly, to

consider the consequences from the prohibition and definition of

statements.14

Therefore, in the absence of evidence that the Department

adequately considered section 106.45(b)(6)(i)’s prohibition on

14 Even the Government’s counsel seemed to be confused by

the effects of section 106.45(b)(6)(i)’s definition of

“statements” at the trial and contradicted the plain language of

the Federal Register by representing that police reports and

rape kits could be admitted depending upon the school’s

interpretation of “statements” and whether that included

documents. See Administrative R. at 000324 (defining

“statements”).

statements not subject to cross-examination, this Court finds

and rules said prohibition arbitrary and capricious. See Dep’t

of Homeland Sec., 140 S. Ct. at 1912-13, Fox Television

Stations, 556 U.S. at 515; Union of Concerned Scientists, 954

F.3d at 19; River St. Donuts, LLC, 558 F.3d at 114.

3. Count IV: Logical Outgrowth Under Section

706(2)(D)

The Advocates challenge five provisions of the Final Rule

“that were not identified, described, or otherwise included in

the Proposed Rule, including provisions that impose sweeping

exclusionary rules of relevant evidence, invite retaliation

against complainants, and purport to preempt state and local

laws . . . .” Pls.’ Mem. Supp. Mot. Prelim. Inj. 22. Section

706(2)(D), however, does not require that an agency’s proposed

rule be identical to the final promulgation. See Long Island

Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007).

When agencies undertake informal rulemaking, the APA

requires them to publish a “[g]eneral notice of proposed rule

making” that contains “the terms or substance of the proposed

rule or a description of the subjects and issues involved.” 5

U.S.C. § 553(b)(3). An agency may deviate from its proposed

rule because “[a]gencies are free -- indeed, they are encouraged

-- to modify proposed rules as a result of the comments they

receive.” Earthworks v. U.S. Dep’t of the Interior, 496 F.

Supp. 3d 472, 498-99 (D.D.C. 2020) (quoting Northeast Md. Waste

Disposal Auth. v. E.P.A., 358 F.3d 936, 951 (D.C. Cir. 2004)

(per curiam)). “Public input is, after all, one of the purposes

of the APA’s notice-and-comment scheme.” Id. at 499.

Therefore, courts have interpreted section 706(2)(D)’s

requirements to mean that an agency’s final rule must be a

“logical outgrowth” of the proposed rule. See Long Island Care

at Home, 551 U.S. at 174 (collecting cases). Thus, “[a]n agency

can make even substantial changes from the proposed version, as

long as the final changes are ‘in character with the original

scheme’ and ‘a logical outgrowth’ of the notice and

comment.” Natural Res. Def. Council, Inc. v. U.S. E.P.A., 824

F.2d 1258, 1283 (1st Cir. 1987) (quoting South Terminal Corp. v.

EPA, 504 F.2d 646, 658 (1st Cir. 1974)); BASF Wyandotte Corp. v.

Costle, 598 F.2d 637, 642 (1st Cir. 1979), cert. denied sub

nom., Eli Lilly & Co. v. Costle, 444 U.S. 1096 (1980). “The

essential inquiry is whether the commenters have had a fair

opportunity to present their views on the contents of the final

plan,” and whether, if “given a new opportunity to comment,

commenters would not have their first occasion to offer new and

different criticisms which the Agency might find convincing.”

Natural Res. Def. Council, 824 F.2d at 1283-84 (quoting BASF

Wyandotte, 598 F.2d at 642). “The object, in short, is one of

fair notice,” Long Island Care at Home, 551 U.S. at 174, and

“whether . . . the party, ex ante, should have anticipated that

such a requirement might be imposed,” Arizona Pub. Serv. Co. v.

E.P.A., 211 F.3d 1280, 1299 (D.C. Cir. 2000) (brackets and

quotations omitted); see also American Med. Ass’n v. United

States, 887 F.2d 760, 768 (7th Cir. 1989) (“The crucial issue,

then, is whether parties affected by a final rule were put on

notice that their interests were at stake; in other words, the

relevant inquiry is whether or not potential commentators would

have known that an issue in which they were interested was on

the table and was to be addressed by a final rule.” (brackets,

quotations, and footnote omitted)).

a. The Final Rule Is a Logical Outgrowth.

The five provisions that the Advocates challenge are (1)

the definitions found in section 106.30, (2) the discretion

under section 106.45(b)(3)(ii) for schools to “dismiss the

formal complaint or allegations therein” if “the respondent is

no longer enrolled or employed by the recipient,” (3) the

hearing procedures in section 106.45(b)(6)(i), including the

exclusion of statements not subject to cross-examination, (4)

the Final Rule’s preemptive effect under section 106.6(h), and

(5) the exclusion of First Amendment speech from the Final

Rule’s prohibition on retaliation under 106.71(b). See Pls.’

Mem. Supp. Mot. Prelim. Inj. 21-23; Second Am. Compl. ¶¶ 284-

293.

First and foremost, the Department was forthright with what

it generally intended to regulate. See Administrative R.

000642. Unlike cases where the agency enumerates specific items

to be regulated and deviates therefrom by regulating different

items, see, e.g., Chocolate Mfrs. Ass’n of the U.S. v. Block,

755 F.2d 1098, 1105 (4th Cir. 1985); American Frozen Food Inst.

v. Train, 539 F.2d 107, 135 (D.C. Cir. 1976), the challenged

provisions fall within the Department’s stated, albeit general,

intention to regulate “(1) What constitutes sexual harassment

for purposes of rising to the level of a civil rights issue

under Title IX; (2) What triggers a school’s legal obligation to

respond to incidents or allegations of sexual harassment; and

(3) How a school must respond.” Administrative R. 000642.

Furthermore, by imposing mandatory dismissal requirements and

more restrictive definitions, the Proposed Rule clearly narrows

the scope of Title IX procedures compared to the Department’s

prior guidance. Compare generally 2001 Guidance, and 2011

Letter, and 2014 Q&A, with Proposed Rule. The Advocates,

therefore, were on notice that their interests were “on the

table,” and to the extent that sections 106.30 and

106.45(b)(3)(ii) further restrict Title IX’s application through

their definitions and discretionary authority, the Department

made these changes only after commenters persuaded it to do so

during the notice and comment process. Administrative R.

000080-166, 000264-266; see Natural Res. Def. Council, 824 F.2d

at 1283-84.

The Advocates’ argument contesting section 106.45(b)(6)(i)

also fails. See id. Here, the Advocates had notice that

section 106.45(b)(6)(i)’s hearing procedures were being

considered, including the bar on statements not subject to

cross-examination. See Proposed Rule § 106.45 (explicitly

barring a hearing officer from considering any statements by

witnesses not subject to cross-examination under a different

proposed provision, 106.45(b)(3)(vii)); Natural Res. Def.

Council, 824 F.2d at 1283-84. Regarding section 106.6(h), some

commenters requested that the Department clarify whether the

Final Rule preempts state law, while other commenters raised

concerns regarding conflicting state laws. Administrative R.

000429-434. Moreover, past executive orders have encouraged

agencies to specify “in clear language the preemptive effect” of

their regulations. See, e.g., Exec. Order No. 12,988, 61 Fed.

Reg. 4,731 (Feb. 5, 1996). The Advocates should have foreseen

that the Department would likely clarify the Final Rule’s

preemptive effect, and the Department’s decision to do so is a

logical outgrowth of the notice and comment process. See

Natural Res. Def. Council, 824 F.2d at 1283-84.

Finally, the Advocates challenge section 106.71(b) but fail

to articulate what about section 106.71(b) is not a logical

outgrowth of the notice and comment process. See Pls.’ Mem.

Supp. Mot. Prelim. Inj. 21-22. The Proposed Rule neither

mentions retaliation nor includes anything similar to section

106.71(b), which prohibits retaliation but not speech protected

by the First Amendment. Compare Proposed Rule with Final Rule

§ 106.71(b). After receiving comments that urged the Department

to adopt a prohibition on retaliation, the Department did so,

despite noting that retaliation has already been found to

violate Title IX by the Supreme Court. Administrative R.

000511, 000520 (“The Department appreciates the commenters’

concerns and suggestions regarding retaliation. Retaliation

against a person for exercising any right or privilege secured

by Title IX or its implementing regulations is never acceptable,

and the Supreme Court has held that retaliation for complaining

about sex discrimination is, itself, intentional sex

discrimination prohibited by Title IX.”); id. 000511 n.1896

(“Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183 (2005)

(holding that “retaliation against individuals because they

complain of sex discrimination is intentional conduct that

violates the clear terms of the statute, and that Title IX

itself therefore supplied sufficient notice that retaliation is

itself sex discrimination prohibited by Title IX” (citation and

quotations omitted))). To contend that the Advocates had

insufficient notice regarding a provision that substantially

restates an already binding prohibition and for which many

commenters explicitly asked illogically puts form over the

function of section 706(2)(D)’s notice requirement. See

Jackson, 544 U.S. at 183; Administrative R. 000520, 000511 &

n.1896.

Accordingly, the Court finds and rules that sections

106.30, 106.45(b)(3)(ii), 106.45(b)(6)(i), 106.6(h), 106.71(b)

are logical outgrowths of the notice and comment process. See

Natural Res. Def. Council, 824 F.2d at 1283-84.

4. Count V: Discrimination on the Basis of Sex in

Violation of the Fifth Amendment

Equal protection under the Fifth Amendment, as in the

Fourteenth Amendment context, “contemplates that similarly

situated persons are to receive substantially similar treatment

from their government.” Tapalian v. Tusino, 377 F.3d 1, 5 (1st

Cir. 2004); see Buckley v. Valeo, 424 U.S. 1, 93 (1976) (per

curiam) (“Equal protection analysis in the Fifth Amendment area

is the same as that under the Fourteenth Amendment.”). To

overcome the “threshold requirement” for an equal protection

claim, plaintiffs must adduce evidence of disparate treatment

showing that the plaintiffs were “treated differently than

others similarly situated.” Ayala-Sepúlveda v. Mun. of San

Germán, 671 F.3d 24, 32 (1st Cir. 2012). That is, plaintiffs

must “identify and relate specific instances where

persons situated similarly in all relevant aspects were treated

differently, instances which have the capacity to demonstrate

that plaintiffs were singled out for unlawful oppression.”

Buchanan v. Maine, 469 F.3d 158, 178 (1st Cir. 2006) (brackets,

alterations, and quotations omitted). Plaintiffs must also show

that the defendant acted with discriminatory intent. Lipsett v.

Univ. of P.R., 864 F.2d 881, 896 (1st Cir. 1988) (citing

Washington v. Davis, 426 U.S. 229, 239–42 (1976)).

If a plaintiff demonstrates these requisites, the Court

must apply a heightened form of scrutiny that requires it to

deem the law unconstitutional where the government fails to

provide an “exceedingly persuasive justification” that the

discrimination “‘serve[s] important governmental objectives’ and

is . . . ‘substantially related to achievement of those

objectives.’” Lipsett, 864 F.2d at 896 (quoting Davis v.

Passman, 442 U.S. 228, 234–35 (1979)); Cohen v. Brown Univ., 101

F.3d 155, 190-91 (1st Cir. 1996) (quoting United States v.

Virginia, 518 U.S. 515, 529 (1996)).

a. The Advocates Fail to Demonstrate Unequal

Treatment.

The Advocates argue that thirteen provisions of the Final

Rule violate the Equal Protection Clause because they “treat[]

allegations of sexual harassment differently, and less

favorably, than allegations of harassment based on race, color,

national origin, and disability, based on the discriminatory and

baseless gender stereotype that women and girls lack credibility

when reporting sexual harassment.” Pls.’ Pretrial Br. 12-14.

The Advocates’ argument does not proceed in the ordinary

course. See Pls.’ Pretrial Br. 12-14. If the Final Rule were

to treat female complainants or respondents differently from

male complainants or respondents, then the victim of such

disparate treatment on the basis of sex may have an Equal

Protection claim. See generally, e.g., Davis, 442 U.S. at 228;

Virginia, 518 U.S. at 515; Reed v. Reed, 404 U.S. 71 (1971);

Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)

(“‘Discriminatory purpose,’ however, implies more than intent as

volition or intent as awareness of consequences. It implies

that the decisionmaker . . . selected or reaffirmed a particular

course of action at least in part ‘because of,’ not merely ‘in

spite of,’ its adverse effects upon an identifiable group.”

(citation and footnote omitted)). The Final Rule, however, does

not speak in terms of gender, sex, or proxies therefor. It is

equally applicable to incidents between the same sex, and the

record is devoid of any evidence that female complainants or

respondents are treated differently from male complainants or

respondents. See Final Rule §§ 106.30, 106.44(a),

106.45(b)(1)(iv), 106.45(b)(1)(v), 106.45(b)(1)(vii),

106.45(b)(3)(i), 106.45(b)(3)(ii), 106.45(b)(5)(iii),

106.45(b)(6)(i), 106.45(b)(6)(ii), 106.6(h), 106.7(b)(1),

106.71(b)(2).

Failing to meet their initial burden, the Advocates attempt

to conjure it up not by “identify[ing] and relat[ing] specific

instances where persons situated similarly in all relevant

aspects were treated differently,” see Buchanan, 469 F.3d at

178, but by identifying instances of “similarly situated”

different types of discrimination in suffering individuals, see

Pls.’ Pretrial Br. 12-14. The Advocates go on to argue that

because the Final Rule’s treatment of sexual harassment, a form

of sex discrimination, is stricter and less deferential than

other regulations promulgated by different agencies pertaining

to different forms of discrimination, that women suffer a

disparate impact from the Final Rule. See Pls.’ Mem. Supp. Mot.

Prelim. Inj. 23-25. This argument suffers several shortfalls,

the most prominent of which is the dearth of caselaw in support.

The Fifth Amendment protects against unequal treatment among

classes of individuals, not among classes of discrimination.

See generally Tapalian, 377 F.3d at 5; Buchanan, 469 F.3d at

178. In lieu of caselaw in support, the Advocates rely on the

bold assertion that the Final Rule is “based on the

discriminatory and baseless gender stereotype that women and

girls lack credibility when reporting sexual harassment.” Pls.’

Pretrial Br. 13. Such “archaic and overbroad generalizations”

about women certainly would qualify as sex discrimination if

they were present here. See Cohen, 101 F.3d at 179 (“[T]he

Supreme Court has repeatedly condemned gender-based

discrimination based upon ‘archaic and overbroad

generalizations’ about women.”). The Advocates, however, fail to

cite even a single sentence in the nearly 300,000-page record

that supports this accusation, see generally Pls.’ Pretrial Br.;

Pls.’ Mem. Supp. Mot. Prelim. Inj., and instead rely on the

tangentially related statements of the Advocates’ expert on

preventing sexual harassment and gender-based violence,15 see

Pls.’ Mem. Supp. Mot. Prelim. Inj. 14 n.89.

15 The cited portion of the expert’s declaration reads as

follows:

The mistaken disbelief of victim testimony and resulting

fact-finding inaccuracy that traumatic reactions triggered

by live hearings can cause also feed into stereotypes that

sexual harassment victims lie about being harassed. My and

others’ research (most notably research by the President of

Brooklyn College, Michelle Anderson) has documented how

ancient legal rules that treated the allegations of

criminal rape victims with special suspicion have been

retained in modern culture as gender stereotypes. That is,

although these doctrines have been reformed out of the

black letter law, they continue to affect the enforcement

of criminal and other laws dealing with sexual harassment

and/or violence through stereotypes regarding victims’ lack

of credibility. Under these old doctrines, women who

reported being raped were viewed as not credible if they

were “unchaste,” married to their assailant, or could not

provide corroborating evidence of being raped.

Accordingly, juries were given “cautionary instructions”

advising them to regard the truthfulness of these women’s

testimony with particular skepticism and suspicion.

Given the legal deficiencies in the Advocates’ arguments,

their failure to demonstrate a discriminatory purpose in

adopting the Final Rule, and their failure to demonstrate that

the Final Rule treats women different from men, the Court finds

and rules that the Final Rule does not violate the Equal

Protection Clause of the Fifth Amendment. See Ayala-Sepúlveda,

671 F.3d at 32; Buchanan, 469 F.3d at 178; Lipsett, 864 F.2d at

896.

V. CONCLUSION

For these reasons, the Court finds and rules and, thus

declares, that with the exception of section 106.45(b)(6)(i)’s

prohibition on all statements not subject to cross-examination,

the Final Rule does not violate the APA or the Fifth Amendment.

The prohibition in section 106.45(b)(6)(i) is REMANDED to the

agency for further consideration and explanation for the reasons

articulated in Section IV.B.2.b.

SO ORDERED.

/s/ William G. Young _

WILLIAM G. YOUNG

JUDGE

of the

Pls.’ Mem. Supp. Mot. Prelim. Inj., Ex. N, Decl. Nancy Chi

Cantalupo ¶ 30, ECF No. 32-14 (footnote omitted).

UNITED STATES16

16 This is how my predecessor, Peleg Sprague (D. Mass. 1841-

1865), would sign official documents. Now that I’m a Senior

District Judge I adopt this format in honor of all the judicial

colleagues, state and federal, with whom I have had the

privilege to serve over the past 43 years.