ACE
and other higher education associations have submitted amicus briefs in two
federal court cases seeking a delay in the effective date of the final Title IX
regulations.
The
Department of Education (ED) issued its new regulations on Title IX sexual assault May 6, with an effective date of
Aug. 14. Campuses have been scrambling to get ready, despite the challenges of
doing so with little time and few staff members working on campus during the
pandemic. ACE and others in the higher education community have told ED and other stakeholders that in
addition to significant concerns about the regulations themselves, choosing
this moment to impose the longest, most complex regulations the agency has ever
issued reflects appallingly poor judgment. ED’s year-and-a-half rulemaking process culminated in a 600,000-word Federal Register notice last month.
On
June 4, attorneys general from 17 states and the District of Columbia filed a lawsuit in federal court in the District
of Columbia against Education Secretary Betsy DeVos, substantively challenging
the new regulations, as well as the process by which they were issued. Their
complaint also signaled that they would be asking the court to order that the
effective date of the regulations be put on hold until the legal challenge is
fully considered. On Tuesday, June 23, the attorneys general filed a motion
with the court focused specifically on delaying the Aug. 14 effective date. In
anticipation, ACE had prepared an amicus brief, and late Wednesday, ACE and 24
other higher education associations submitted that brief in support of the
motion.
Independent
of the merits of the challenges to the new regulations, the brief explains the
imminent and irreparable harms to colleges and universities if the compliance
deadline is not stayed. In prior letters to ED, ACE and other associations had
asked for such a deferral to enable sensible planning and adoption of campus
processes and procedures.
This
lawsuit in the District of Columbia is one of four that have been filed during
the last month challenging the new Title IX regulations. Late Thursday the New
York attorney general also filed a motion in its case in federal court in
Manhattan seeking to block the Aug. 14 effective date. This afternoon ACE and
the other 24 associations submitted an amicus brief supporting that request, as well.
The
New York attorney general’s brief opens with a reference to ACE President Ted Mitchell’s May
6 statement that criticized both the substance of the final regulations and the
Aug. 14 effective date: “Under current conditions—in
which campuses are closed indefinitely due to the COVID-19 pandemic, teaching
and learning are happening remotely, and already constrained school budgets are
being further depressed by the diversion of resources to the pandemic
response—the mid-August effective date, as one organization put it, ‘is as
cruel as it is counter-productive.’” (Noting in the citation that the
quote comes from Mitchell’s statement.)