The Women’s Student Union v. U.S. Department of Education

The Women’s Student Union v. U.S. Department of Education

This is a lawsuit brought under the Administrative Procedure Act to challenge key provisions of the Title IX regulations promulgated in 2020 by the U.S. Department of Education under the leadership of former Secretary of Education Betsy DeVos. The regulations limit the rights of students who experience sexual harassment at school and represent a dramatic departure from the Department’s long-standing positions under both Democratic and Republican administrations.

The Women’s Student Union (WSU) is an organization of young people who attend the Berkeley Unified School District (BUSD) in Berkeley, California. It advocates on issues that affect girls and non-binary students, including sexual harassment. WSU wants the Department of Education’s help in ensuring BUSD follows Title IX, the federal sex discrimination law. But because of the 2020 regulations, the federal government is unable to investigate BUSD and require it to change its policies and practices on important matters related to sexual harassment.

On March 8, 2021, WSU filed suit against the Department of Education, asking the court to strike down four key provisions of the 2020 regulations: (1) the narrow definition of sexual harassment, (2) the limitation that schools need not address harassment that occurs off-campus or outside a school activity, even if that harassment creates a hostile environment in school, (3) the rule that schools are only required to address harassment of which they have “actual knowledge,” and not other harassment of which they should know, and (4) the rule that schools only violate Title IX if they are “deliberately indifferent” to sexual harassment—that is, if they act in a “clearly unreasonable” manner. The case is before Judge Edward Chen in the U.S. District Court for the Northern District of California.

On June 4, 2021, the Department of Education moved for the court to hold the case in abeyance pending anticipated rulemaking on Title IX. On June 18, 2021, Judge Chen denied the motion, allowing the case to proceed.

Currently pending before the court are two motions to intervene as defendants filed by the State of Texas and a group of non-profit organizations.

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