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After the Department of Education issued Title IX regulations protecting students’ free speech and due process rights in sexual misconduct cases on May 6, four lawsuits were filed challenging the legality of these new regulations under the Administrative Procedure Act. Earlier this week, Know Your IX et al. v. DeVos was dismissed without prejudice, meaning the plaintiffs may try to make their case again by amending their complaint. The U.S. District Court for the District of Maryland ruled that the plaintiffs lacked standing to sue, so Tuesday’s ruling is not a legal determination about whether the new regulations are lawful. Still, this dismissal is an important step away from depriving students of the important safeguards for their free speech and due process rights contained in the new regulations, which took effect in August following months of public notice and comment.

Earlier this week, Know Your IX et al. v. DeVos was dismissed without prejudice, meaning the plaintiffs may try to make their case again by amending their complaint.

The American Civil Liberties Union (ACLU) brought the Maryland case on behalf of plaintiffs Know Your IX, the Council of Parent Attorneys and Advocates, Girls for Gender Equity, and Stop Sexual Assault in Schools, all of which are nonprofit organizations that purport to work toward equal access to education. They claimed in their May 14 lawsuit against ED, Secretary of Education Elisabeth DeVos, and former Assistant Secretary for Civil Rights Kenneth L. Marcus that the new Title IX regulations “creat[ed] an arbitrary and wholly unexplained disparity between its treatment of sex discrimination” and discrimination based on other protected classes, and that they are arbitrary and capricious in violation of the Administrative Procedure Act.

FIRE doesn’t have an institutional stance on all the provisions these plaintiffs challenged, but we certainly have a stance on the plaintiffs’ claim that ED “redefined” sexual harassment. To the contrary, it simply reaffirmed the standard set by the Supreme Court over 20 years ago.

The court didn’t get that far, though. Before a court rules on the merits of the case, plaintiffs must establish standing — essentially, that they have suffered a legal harm and now is the right time to make the legal argument they are making. As the court reviews,

To establish Article III standing and invoke federal jurisdiction, a plaintiff must show (1) an “injury in fact,” (2) a sufficient “causal connection between the injury and the conduct complained of,” and (3) a “likelihood” that the injury “will be redressed by a favorable decision.”

Council of Parent Attorneys and Advocates, Inc.

Council of Parent Attorneys and Advocates, Inc. argued that it has associational standing because one of its member attorneys who represents students, faculty, and staff in Title IX proceedings alleges she will have a harder time resolving cases in her clients’ favor. Judge Richard D. Bennett wrote that this result is speculative, and in any case, “COPAA’s argument seems to hinge[ ] on an attorney’s desire to assist her clients in a regulatory environment that she prefers” (internal quotations omitted). He further explained: “Attorneys do not suffer a recognizable injury in fact under Article III whenever the law causes changes to their docket . . . .” Even if COPAA had alleged economic injury, he wrote, it would have to show that this injury “falls within the ‘zone of interests’ sought to be protected by the statutory provisions whose violation forms the legal basis for his complaint.” In short, Title IX was enacted to protect students, not their attorneys. Accordingly, the court concluded that COPAA does not have standing to sue.

Girls for Gender Equity

Girls for Gender Equity argued that it has organizational standing because it would have to spend more of its resources advocating against the new regulations and educating its members and others about changes in the law, thus suffering an injury. The court rejected this argument, writing that “[t]he Fourth Circuit held that voluntary ‘budgetary choices’ are not cognizable injuries under Article III.” Furthermore:

If this Court were to allow a party whose organizational mission is to engage in policy advocacy to claim injury on the basis of a need to engage in that exact activity, any advocacy group could find standing to challenge laws when there are changes in policy.

Sound familiar? I wrote almost the exact same thing two years ago in the context of SurvJustice, Equal Rights Advocates, and the Victim Rights Law Center’s lawsuit challenging the rescission of the April 4, 2011 “Dear Colleague” letter. In that case, a federal court in California bewilderingly seemed to accept the argument that the plaintiff organizations were injured by ED’s rescission of the DCL because it caused “frustration of [the plaintiffs’] organizational mission[s]” and “diversion of . . . resources to combat” that frustration.

In this case, the court ruled that Girls for Gender Equity does not have standing to sue.

Stop Sexual Assault in Schools

Stop Sexual Assault in Schools made a similar argument to Girls for Gender Equity, which was rejected on the same grounds. Additionally, Judge Bennett wrote that SSAIS’s injury could not be redressed by the court because if it does rule in SSAIS’s favor, the organization will still have to do what it complains of having to do now: “update its informational and training materials and ‘engage in the resource-draining task of recreating itself as an expert in state and local policies.’” SSAIS, therefore, does not have standing to sue.

Know Your IX

Finally, lead plaintiff Know Your IX argued that “[t]he Rule’s provisions directly frustrate Know Your Title IX’s mission,” and that it will face an increase in “calls and training requests” that will require the expenditure of more resources.

The court reiterated that an organization’s decisions about resource allocation is not an issue for the courts to redress. Here, it looks back at SurvJustice et al. v. DeVos, noting that at least in that case the plaintiffs offered some evidence that changes in the organizations’ case loads were not merely speculative. Judge Bennett wrote, though, that even if Know Your IX had done so, it would still need to show “an involuntary reallocation of resources.” Know Your IX “has not demonstrated that the Rule forced the organization to take action as a matter of law,” only a “unilateral and uncompelled response to the shifting needs of its members.” Accordingly, it does not have standing to sue.

Where things stand now

This development means that there is now one fewer potential avenue for a ruling against these important safeguards for student rights.

FIRE, Independent Women’s Law Center, and Speech First had filed a motion to intervene in this suit. We will review our options moving forward as plaintiffs decide whether to appeal or amend their complaint.

Our motion to intervene was granted in Pennsylvania et al. v. DeVos and denied in New York v. Department of Education and Victim Rights Law Center et al. v. DeVos. Moreover, motions for preliminary injunctions have been denied in Pennsylvania et al. v. DeVos and New York v. Department of Education. More coverage of and documents from all four cases challenging the new Title IX regulations can be found on our page dedicated to this litigation.

While a decision on the merits stating that the new Title IX regulations are lawful would be welcome, this development means that there is now one fewer potential avenue for a ruling against these important safeguards for student rights.

You can view the order to dismiss below: