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Victim Rights Law Center v. Cardona

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On July 28, 2021, the District of Massachusetts joined the likes of District Courts in Maryland, Washington, D.C., and New York by upholding the 2020 Title IX regulations set forth by the Trump Administration. In Victim Rights Law Center v. Cardona, four victim rights advocacy organizations, and three individual plaintiffs sought to challenge the 2020 Title IX Regulations, arguing that several of its provisions violated the Administrative Protective Act and the Equal Protection Clause of the Fifth Amendment. Specifically, the plaintiffs challenged thirteen provisions contained in the 2020 Title IX Regulations, including:

  • Section 106.30 – Sexual Harassment Definition;
  • Section 104.44(a) – Recipient’s Response to Sexual Harassment, Generally;
  • Section 106.45(b)(1)(iv) – Presumption of Non-Responsibility;
  • Section 106.45(b)(1)(v) – Reasonably Prompt Time Frames;
  • Section 106.45(b)(1)(vii) – Describe Standard of Evidence;
  • Section 106.45(b)(3)(i) – Mandatory Dismissal of Formal Complaints;
  • Section 106.45(b)(3)(ii) – Discretionary Dismissals/Notice of Dismissal;
  • Section 106.45(b)(5)(iii) – Recipients Must Not Restrict Ability of Either Party To Discuss Allegations or Gather and Present Relevant Evidence;
  • Section 106.45(b)(6)(i) – Postsecondary Institution Recipients Must Provide Live Hearing With Cross-Examination;
  • Section 106.45(b)(6)(ii) – Elementary and Secondary School Recipients May Require Hearing and Must Have Opportunity To Submit Written Questions;
  • Section 106.6(h) – Preemptive Effect;
  • Section 106.71(b)(1) – Exercise of rights protected by the First Amendment is not retaliation; and
  • Section 106.71(b)(2) – Charging an individual with a code of conduct violation for making a materially false statement in bad faith does not constitute retaliation.

After holding that all but one individual plaintiff and one organizational plaintiff did not have standing, the Court addressed the plaintiffs’ arguments.

In its ruling, the Court upheld every regulation, with the exception of one minor provision, noting that plaintiffs’ arguments were riddled with legal deficiencies and failed to demonstrate a discriminatory purpose in adopting the Final Rule. In support of its ruling, the Court wrote that the 2020 Title IX Regulations, including the definition of sexual harassment, were well-grounded in relevant case law and were reasonable and appropriate. Regarding the plaintiffs’ arguments related to the Title IX grievance procedures, the Court stated, “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 is,” which is insufficient to overcome the presumption of validity.

Throughout its opinion, the District Court relied heavily on the fact that the Department of Education provided thoughtful reasonings for each and every provision, as well as how each provision furthered the objective of Title IX. Thus, the Court held that the challenged provisions were not arbitrary or capricious. The Court did, however, reject the provision banning other statements if the student does not submit to cross-examination. The Court held that it could envision a scenario where a respondent could manipulate the process by refusing to appear for the hearing, as well as convincing others not to appear. (This provision has also drawn criticism as colleges have excluded otherwise exculpatory evidence where a witness has chosen not to participate.) The Court expressed concern that, in this scenario, an almost impossible burden of proof would be placed on the accuser, especially when paired with the presumption of non-responsibility and the provision allowing the absent respondent’s advisor to cross-examine the accuser. Even so, the Court remanded this provision to the agency for further reconsideration and explanation, rather than striking it down completely.

The Court also vehemently rejected plaintiffs’ arguments that the 2020 Title IX Regulations violated the Equal Protection Clause. Specifically, the plaintiffs argued that, because the Final Rule’s treatment of sex discrimination is stricter and less deferential than other regulations pertaining to different forms of discrimination, women suffer a disparate impact from the Final Rule. In a powerful statement, the Court responded that this argument suffers from several shortfalls, “the most prominent of which is the dearth of caselaw in support.” Instead of providing any supporting law for their argument, plaintiffs relied on a “bold assertion” that the regulations are based on the discriminatory and baseless gender stereotype that women and girls lack credibility when reporting sexual harassment. The Court quickly rejected this argument, noting that the plaintiffs failed to cite “even a single sentence in the nearly 300,000-page record that supports this accusation.”

Victim Rights Law Center v. Cardona is the fourth case upholding the 2020 Title IX Regulations, which helped to establish a process that was fair to both Complainants and Respondents in determining whether the accused was in fact in violation of school policies. Aside from this case, and the three others like it, District and Circuit courts have extended due process rights and expectations that the student disciplinary process will be fundamentally fair to accused students facing allegations of sexual misconduct. While the Biden Administration has pledged to roll back these regulations, court opinions, such as this one, are a critical step towards ensuring that the adjudication process relative to sexual misconduct claims are designed and conducted to ascertain the truth and to reach a just result. More information regarding President Biden’s plan rollback the current regulations can be seen here.

With the changing landscape of Title IX regulations, it is ever important to have a well-trained and knowledgeable adviser. At Friedman Nemecek Long & Grant, L.L.C., our Title IX attorneys have years of experience dealing with the fluid regulations presented by political changes, court decisions, and securing the rights of Complainants and Respondents. As the new regulations unfold over the coming months, our attorneys will be prepared and ready to help you with any issues pertaining to Title IX regulations and procedures. If you have questions regarding a student’s rights in Title IX proceedings, or you have been subjected to, or accused of, sexual misconduct, sexual assault, dating violence, or sexual harassment on campus, please call Friedman Nemecek Long & Grant, L.L.C., L.L.C., in Cleveland, OH at 216-928-7700 for a free initial consultation.

The full Opinion can be found at this link.