A federal judge dismissed a lawsuit seeking injunctive relief on Friday filed by SurvJustice and other rights groups against US Secretary of Education Betsey DeVos and the department’s policy regarding Title IX enforcement.
The department of Education released a new guidance document in 2017 that has been highly contested since. This decision comes after oral arguments were made by both parties in October. Judge Jacqueline Scott Corley held that the new guidance is not “final” and therefore not subject to judicial review under the Administrative Procedure Act (APA). According to the APA, SurvJustice has the right to seek judicial review of the guidance so long as the agency action is “final”.
Judge Corley used a two-prong test to determine whether the Title IX guidance was, in fact, final. First, “the court must ‘look to see whether the agency has rendered its last word on the matter.'” Neither party disputes that when the Department of Education set out the 2017 guidelines it solidified that the 2011 guidance would be dismissed and made a clear stance that their enforcement policies would change.
It is the second prong, whether the guidance is “one by which rights or obligations have been determined, or from which legal consequences will flow,” that is contested. SurvJustice claims that because universities that apply for federal funding through the Department of Education must comply with all regulations, the universities are at risk to lose funding if they do not follow the new guidance. By this standard, the guidance would be “final” under the second prong of the APA test, and therefore subject to judicial review. However, Judge Corely favored the Department of Education noting that a “violation of the 2017 Guidance cannot result in… enforcement action and potential termination of federal funding because [there is] no legal authority to enforce the Guidance.”
Though the Department of Education (defendants) technically won this case, further inquiries may follow now that the court has held that the 2017 guidances are not currently mandatory.