Wisconsin Resists Implementation of Title IX Regulations

On May 19, 2020, in a previous article, we reported on the U.S. Federal Department of Education’s new Title IX regulations, which were released on May 6. 2020, and which impose formal requirements on the investigation process and complaint adjudication starting on August 14, 2020. In an effort to halt implementation of the new regulations, Wisconsin Attorney General Kaul, at the direction of Governor Evers, along with 17 other states and the District of Columbia, has filed suit in federal court seeking an order to enjoin implementation of the new Title IX regulations.[1]

The Allegations in the Complaint

The lawsuit (the “Complaint”), filed in the United States District Court for the District of Columbia on June 4, 2020, alleges that the regulation’s investigative procedures diminish the protections against sexual harassment guaranteed by Title IX and create a “chilling” effect that will prevent many alleged instances of sexual harassment from being reported. As to the chilling effect, the Complaint notes that despite U.S. Department of Education Secretary Devos’ statement that students over-report sexual harassment and make frivolous claims, the federal government’s own data indicates that sexual harassment involving students remains pervasive and under-reported.

The Complaint alleges that the final regulations contain substantive revisions that are beyond the scope of the proposed regulations and are inconsistent with the ameliorative purpose of Title IX. As a result, according to the Complaint, the regulations have been issued without proper rulemaking procedures and beyond the authority of the provisions of Title IX.

Of particular interest for K-12 school districts, according to the Complaint, the regulations impermissibly limit and effectively override local schools’ investigative and corrective measures. These provisions create conflicts with state law requirements requiring that schools combat discrimination and harassment on the basis of sex, and infringes on the states’ rights to manage and provide public education. In addition, the Complaint asserts that the regulations violate other legal requirements, including the Family Educational Rights and Privacy Act (FERPA) by mandating an investigation process which, among other elements, requires full disclosure of information and evidence collected to the accused, without regard to interests of confidentiality or protective interests for victims and witnesses, including minors.

In addition to the substantive objections to the regulations, the Complaint asserts that the timeline for compliance is unreasonable, particularly in the current circumstances. Specifically, the Department published the final regulations on May 6, 2020 with required compliance by August 14, 2020. All educational institutions affected by the regulations have been closed, due to COVID-19, since prior to the final regulations’ publication. Likewise, the affected educational institutions, including all public school districts and public post-secondary institutions, as well as many private educational institutions, are burdened with preparing for summer and fall programming in an uncertain environment. Requiring those institutions to implement these regulations during this time period, the Complaint asserts, imposes “an extraordinarily difficult burden” and, given that many staff are not available (either because of the summer vacation or due to ongoing COVID-19 related restrictions), implementation could not possibly be accomplished, including the requisite staff training, in time.

The Complaint requests that the court (1) stay the effective date of the regulations pending judicial review; (2) grant both preliminary and permanent injunctive relief from the regulations; and (3) vacate the regulations in their entirety. No future filing deadlines or court dates have yet been set in the case. Typically, the government as defendant is provided 60 days to file and Answer to the allegations in the complaint following service. That would be put the Answer deadline in early August and, in the absence of expedited proceedings, make any court order prior to August 14 seem unlikely.

Governor Evers Rejects UW System’s Emergency Rule Scope Statement

On May 21, 2020, the President of the University of Wisconsin System presented a “scope statement” to Governor Evers for his approval. A “scope statement” is required when an agency with regulatory authority proposes to issue emergency rules prior to undertaking the full formal rulemaking process. The UW System sought authority from the Governor to develop an emergency rule in order to implement the Title IX regulations on the restrictive timeline provided for in those regulations. The scope statement notes that current rules applicable to the UW system “would seem to be in conflict with the language of the federal rules” and that failure to implement the federal rules exposes the UW System to federal enforcement action.

On June 15, 2020, Governor Evers rejected the scope statement by letter to the UW System President. In his correspondence, Governor Evers explained that he was rejecting the scope statement because it failed to state whether the intended rule changes would strengthen or weaken the definition of sexual harassment in existing UW System rules. He also rejected the scope statement because it failed to recognize the economic impact of implementing the federal regulations, specifically as it relates to the “significant costs, not only to survivors’ physical and emotional wellbeing, but also the resulting need for increased mental health care services.”

The UW System will have to revise its scope statement to the satisfaction of the Governor before securing approval to implement the federal Title IX regulations.

What Should School Districts Do Now?

At this point, the Title IX regulations remain in effect. As such, school districts should continue to prepare to implement the Title IX complaint process and definitions contained in the regulations. It is possible that the effective date may be delayed, or the regulations enjoined in some fashion; however, given the short timeframe allotted, preparation is still necessary in the event the provisions, as presently devised, remain. If a court or the U.S. Department of Education takes action that impacts these regulations, adjustments will have to be made at that time. In addition, while it is advisable to prepare to implement the changes to the Title IX investigation process, these revisions do not affect policies and procedures related to other forms of anti-harassment and nondiscrimination; nor do they impact policies and procedures related to bullying in the workplace or educational environments.

We will continue to monitor this developing situation and provide updates as appropriate.

[1] Plaintiff states are: Pennsylvania, New Jersey, California, Colorado, Delaware, Illinois, Massachusetts, Michigan, Minnesota, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and the District of Columbia.  This suit is separate from the suit previously filed by the ACLU in the United States District Court for the District of Maryland.  The ACLU case remains pending as well and the Secretary has until July 31, 2020 to file an Answer to the ACLU’s complaint.