For anyone taking the ostrich approach to the Department of Education’s Title IX regulations—sticking their heads in the sand and hoping that a lawsuit will come along to blow these pesky regulations away—there may be some hope. Two recently-filed lawsuits, one by attorneys general from 17 states, including Illinois, and the District Columbia and another by the state of New York, seek to invalidate the new regulations under the Administrative Procedure Act or, at the very least, obtain an extension of the August 14, 2020 implementation date. Despite these and other pending lawsuits—including one from the ACLU filed in May—schools, colleges, and universities should continue to prepare to implement the new Title IX regulations on August 14, 2020. Educational institutions may wish to consider including language in new policies and procedures allowing quick changes if a challenge to the regulations proves successful. This would allow a return to governing documents currently in effect without normal delays inherent in educational policymaking if warranted by a court ruling.

What do the lawsuits claim? The APA requires government agencies to follow certain procedures and steps when they issue a new regulation, and the lawsuits claim the Department failed to do so in the case of the 2020 Title IX regulations.

Despite these and other pending lawsuits challenging, work on implementing the rules must continue.

Among other issues raised in the lawsuits are claims that:

• The 2020 Title IX rules improperly incorporate new provisions in the final rules that were not in the proposed rules and so were not subject to the “notice and comment” required for rulemaking
• It was arbitrary and capricious for the Department to expect educational institutions to comply with the new regulations in 100 days, or by August 14
• The Department failed to provide adequate justification or explanation before stripping away longstanding protections against sexual harassment under Title IX
• The rule creates arbitrary and unlawful procedural requirements that will chill reporting of sexual harassment, and
• The law will make it harder for schools to address complaints and will conflict with other state and federal laws, including the Family Educational Rights and Privacy Act (FERPA).

Educational institutions may wish to consider including language in new policies and procedures allowing quick changes if a challenge to the regulations proves successful.

Despite these and other pending lawsuits challenging, work on implementing the rules must continue. Although these lawsuits may have the effect of delaying and, if they are successful, even overturning the regulations, there is no guarantee. With only two months left to come into compliance before the August 14 implementation date, work must begin in earnest in case the lawsuits are unsuccessful.

Because policymaking is not a quick process in most schools, colleges, and universities, we suggest that educational institutions include language in updated policies and procedures recognizing that immediate action may be taken to address any changes that may result from legal challenges to the rules without using the typical policymaking process. Consider whether authorization must be provided by committees or governing boards to take such interim actions, if necessary, as well.

We know this is a challenging time to come into compliance with Title IX, but schools, colleges, and universities should not delay. We are offering many services to help PreK-12 and higher education institutions meet the requirements of the new rules by August 14. For more information, reach out to me or any other member of our Title IX team.