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Three strikes and you’re out: Court tosses another lawsuit to stop DeVos Title IX regulation

How stupid is the ACLU to make these laughable arguments?

I’ve said repeatedly that the Trump administration’s most by-the-book regulatory action was easily the Title IX rulemaking on campus sexual misconduct proceedings, whose regulation went into effect Aug. 14.

Accusers’ rights organizations, including the inaccurately named American Civil Liberties Union, nevertheless filed lawsuits with ridiculous arguments that laughably invoked the Administrative Procedure Act in a last-ditch effort to nullify the regulation.

Two of the suits, by New York and Democratic attorneys general, got tossed by judges shortly before the regulation  by Education Secretary Betsy DeVos* took effect, and another court has now gutted a third filed by the ACLU.

Tuesday’s ruling by U.S. District Judge Richard Bennett makes clear that three of the four plaintiffs have no “independent” standing to bring suit, while the fourth will get another crack (“without prejudice”) to show that it has actually been harmed by the regulation.

Know Your Title IX, the Council of Parent Attorneys and Advocates, Girls for Gender Equity and Stop Sexual Assault in Schools made fiery and far-reaching claims that a rulemaking codifying sexual harassment for the first time actually let schools off the hook for responding to sexual harassment.

COPAA, which purportedly represents students with disabilities (except those who are victims of kangaroo courts), seriously argued that one of its members will get less business because of the federal regulation. That’s the harm behind its claim for “associational standing.”

COPAA provides that [Elizabeth Abdnour’s] “private practice primarily entails representing K-12 and college students, as well as higher education staff and faculty, in Title IX proceedings and advocating on behalf of K-12 special education students seeking services in their public schools.” The Complaint alleges that because changes in the Rule will cause student complaints to face “more hurdles and be less likely to succeed,” this attorney will have fewer administrative complaints to file, and the cases she does pursue “will be more difficult and take more time to resolve.”

MORE: Judge says DeVos regulation ‘rooted in the text of Title IX’

In other words, she’ll have to go to court more often, meaning she can’t take as many cases. The horror!

Judge Bennett correctly judges these changes “too speculative” to show harm to Abdnour, who is simply whining that she has lost the “regulatory environment that she prefers.” Lawyers don’t get standing “whenever the law causes changes to their docket.”

Her harm isn’t even related to Title IX! “Congress was not concerned with the revenue flow of private attorneys,” the judge continues: “An attorney does not gain standing any time a change in the law causes her legal practice to shift or become less lucrative.”

Girls for Gender Equity’s gripe also boils down to how it will change its strategy in response to the federal regulation, putting more “staff time and resources” into state and local lobbying.

If the ACLU has done its research for its clients, it would know that this exact argument was rejected in 2012 by the 4th U.S. Circuit Court of Appeals, whose rulings are binding on Bennett’s court. A gun-rights organization claimed standing because it would make different “budgetary choices” based on a legal change, which the 4th Circuit said would imply standing to any organization with an “abstract concern” about a given issue.

Both organizations tried to invent their way to standing, since neither is really forced to change their budget allocations, Bennett said: Their actions are “voluntary,” and both simply disagree with a policy outcome.

The judge’s analysis of standing claims by Stop Sexual Assault in Schools, which are similar to Girls for Gender Equity’s (both sought “organizational standing”), is perhaps the most entertaining:

SSAIS’s argument is that it has suffered injury by having to read the Rule and tell people what it says. Even if the [Department of Education] had issued a Rule that SSAIS preferred, it presumably would still need to “dedicate a substantial amount of time to analyzing the Rule . . . , assessing existing or needed state or local parallel protections . . . , recreating educational materials, and providing technical assistance to students, families, educators, and journalists.”

MOREJudge says Title IX regulation can benefit both accusers and accused

The organization would “presumably have to once again edit its materials” if the court agreed and forced the department to change its Title IX regulation, Bennett noted. How stupid is the ACLU, really?

Know Your IX came the closest to meeting the organizational-standing threshold, claiming the Title IX regulation “reduces the number and types of conduct or events that may be investigated by schools in Title IX proceedings.” (How? By using the Supreme Court’s sexual-harassment standard and excluding off-campus incidents over which schools have no control.)

This resulting reduction in remedies for “survivors” (the guilt-presuming term used by every anti-due process group) means Know Your IX will have trouble reaching its “goal of bringing greater attention to survivors’ actual experiences and ensur[ing] their stories are not buried.”

In anticipation of the regulation taking effect, the group received a “spike in training requests” for this upcoming spring, and it “expects the number of calls and training requests to increase further now that the Rule has been released.”

This is “slightly” different from its arguments about spending changes and “frustration of purpose,” Bennett said, but it’s still short of sufficiently alleging “any facts that reflect and support an increased expenditure of resources as a result of the promulgation of the Rule.”

Unlike a preemptive lawsuit against the Title IX rulemaking itself by accusers’ rights groups including SurvJustice, Know Your IX has not shown an “observed” chilling effect in the form of fewer sexual harassment complaints in response to the regulation, the judge said.

It’s simply speculating about “the number of calls and training requests that it will receive in reaction” to the regulation; even “threatened injuries” must be “certainly impending”; and Know Your IX “would still need to show causation” in the form of an “involuntary reallocation of resources” and direct impairment to its operation.

*Disclosure

h/t KC Johnson

MORERepublican AGs tell judge that Trump’s Title IX rules are fairer than Obama’s

IMAGE: fotoandrea/Shutterstock

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About the Author
Associate Editor
Greg spent several years as a technology policy reporter and editor for Warren Communications News in Washington, D.C., and guest host on C-SPAN’s “The Communicators.” He co-founded the alternative newspaper PUNCH and served as a reporter, editor and columnist for The Falcon at Seattle Pacific University.

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