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

N.D. California

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

DecidedJune 18, 2021

Docket3:21-cv-01626

StatusUnknown

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Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 THE WOMEN’S STUDENT UNION, Case No. 21-cv-01626-EMC

8 Plaintiff, ORDER DENYING DEFENDANT’S 9 v. MOTION TO STAY THE CASE

10 U.S. DEPARTMENT OF EDUCATION, Docket No. 44 11 Defendant.

12 13 14 Pending before the Court is the Department of Education’s motion to stay the case for sixty 15 days while it reviews the regulations at issue. See Docket No. 44 (Stay Mot.). For the following 16 reasons, the motion is DENIED. 17 In 2020, then-Secretary of Education Betsy DeVos issued regulations that Plaintiff the 18 Women’s Student Union (WSU) contends weakened key federal protections under Title IX of the 19 Education Amendments of 1972 for students who experience sexual harassment and 20 discrimination in public schools. See Docket No. 1 (“Compl.”) ¶ 8 (citing 85 Fed. Reg. 30,026 21 (May 19, 2020) (codified at various places in 34 C.F.R. Pt. 106) (the “Regulations)). WSU filed 22 the instant action seeking to vacate the Regulations under the Administrative Procedure Act 23 (APA) on March 8, 2021. The State of Texas and three groups—the Foundation for Individual 24 Rights in Education, Independent Women's Law Center, and Speech First, Inc.—filed motions to 25 intervene in this case on April 7 and May 24, 2021, respectively. See Docket Nos. 19, 25. The 26 Court is scheduled to hear those motions on July 15, 2021. 27 Shortly after WSU filed its complaint, President Joseph Biden issued Executive Order 1 and consider whether [they] should be suspended, revised, or rescinded.” Stay Mot. at 1 (citing 2 Exec. Order No. 14,021, 86 Fed. Reg. 13,803 (Mar. 8, 2021)). As a result, the Department filed 3 the instant motion to stay this case for sixty (60) days while it reviews the Regulations. Id. 4 WSU argues that the Court should deny the stay because the Department could take 5 months—and certainly longer than sixty days—to review the Regulations. See Docket No. 51 6 (“Opp’n”) at 1. The Court agrees. On April 6, 2021, the Department released a letter from the 7 Acting Assistant Secretary for Civil Rights, Suzanne B. Goldberg, explaining that a formal 8 rulemaking process—including notice and comment—will be required “to determine changes or 9 additions to the Department’s Tile IX regulations and any related agency actions that may be 10 necessary to fulfill the Executive Order.” Suzanne B. Goldberg, U.S. Dep’t. of Educ., Letter to 11 Students, Educators, and other Stakeholders re Executive Order 14021 (Apr. 6, 2021), 12 https://www2.ed.gov/about/offices/list/ocr/correspondence/stakeholders/20210406-titleix-eo- 13 14021.pdf. Although Assistant Secretary Goldberg’s letter does not establish a timeline by when 14 the Department will complete its review of the Regulations, a formal notice and comment 15 rulemaking process almost always takes longer than sixty days. Id. For example, it took the 16 Department eighteen months—from November 2018 to May 2020—to issue the Regulations in the 17 first place. See 85 Fed. Reg. at 30,031. 18 There is also no guarantee that the Department will rescind the Regulations. Assistant 19 Secretary Goldberg’s letter does not indicate exactly how the Department intends to change the 20 Regulations. Unlike some of President Biden’s other executive orders that explicitly reverse the 21 prior administration’s actions, Executive Order 14,021 only instructs the Department to “review” 22 the Regulations. It is therefore entirely possible that the Department, after a lengthy notice and 23 comment period, decides not to rescind, suspend, or even revise the Regulations. In short, it is 24 highly unlikely the case will be moot within 60 days or anywhere near that time period. As the 25 Regulations remain intact, WSU risks prejudice by the proposed stay, particularly if the stay is 26 extended for substantial periods as the Department may well request. 27 Accordingly, the Court DENIES the Department’s motion for a sixty-day abeyance 1 process to rescind, or otherwise modify the Regulations, in sixty days. 2 The Department is instructed to respond to the complaint within fourteen (14) days of this 3 order. The Court will hold the initial case management conference and hear arguments on the 4 pending motions to intervene, as planned, on July 15, 2021. The briefing schedule for those 5 motions remains unchanged. 6 This order disposes of Docket Nos. 44 and 47. 7 8 IT IS SO ORDERED. 9 10 Dated: June 18, 2021 11 12 ______________________________________ EDWARD M. CHEN 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 THE WOMEN’S STUDENT UNION, Case No. 21-cv-01626-EMC

8 Plaintiff, ORDER DENYING DEFENDANT’S 9 v. MOTION TO STAY THE CASE

10 U.S. DEPARTMENT OF EDUCATION, Docket No. 44 11 Defendant.

12 13 14 Pending before the Court is the Department of Education’s motion to stay the case for sixty 15 days while it reviews the regulations at issue. See Docket No. 44 (Stay Mot.). For the following 16 reasons, the motion is DENIED. 17 In 2020, then-Secretary of Education Betsy DeVos issued regulations that Plaintiff the 18 Women’s Student Union (WSU) contends weakened key federal protections under Title IX of the 19 Education Amendments of 1972 for students who experience sexual harassment and 20 discrimination in public schools. See Docket No. 1 (“Compl.”) ¶ 8 (citing 85 Fed. Reg. 30,026 21 (May 19, 2020) (codified at various places in 34 C.F.R. Pt. 106) (the “Regulations)). WSU filed 22 the instant action seeking to vacate the Regulations under the Administrative Procedure Act 23 (APA) on March 8, 2021. The State of Texas and three groups—the Foundation for Individual 24 Rights in Education, Independent Women's Law Center, and Speech First, Inc.—filed motions to 25 intervene in this case on April 7 and May 24, 2021, respectively. See Docket Nos. 19, 25. The 26 Court is scheduled to hear those motions on July 15, 2021. 27 Shortly after WSU filed its complaint, President Joseph Biden issued Executive Order 1 and consider whether [they] should be suspended, revised, or rescinded.” Stay Mot. at 1 (citing 2 Exec. Order No. 14,021, 86 Fed. Reg. 13,803 (Mar. 8, 2021)). As a result, the Department filed 3 the instant motion to stay this case for sixty (60) days while it reviews the Regulations. Id. 4 WSU argues that the Court should deny the stay because the Department could take 5 months—and certainly longer than sixty days—to review the Regulations. See Docket No. 51 6 (“Opp’n”) at 1. The Court agrees. On April 6, 2021, the Department released a letter from the 7 Acting Assistant Secretary for Civil Rights, Suzanne B. Goldberg, explaining that a formal 8 rulemaking process—including notice and comment—will be required “to determine changes or 9 additions to the Department’s Tile IX regulations and any related agency actions that may be 10 necessary to fulfill the Executive Order.” Suzanne B. Goldberg, U.S. Dep’t. of Educ., Letter to 11 Students, Educators, and other Stakeholders re Executive Order 14021 (Apr. 6, 2021), 12 https://www2.ed.gov/about/offices/list/ocr/correspondence/stakeholders/20210406-titleix-eo- 13 14021.pdf. Although Assistant Secretary Goldberg’s letter does not establish a timeline by when 14 the Department will complete its review of the Regulations, a formal notice and comment 15 rulemaking process almost always takes longer than sixty days. Id. For example, it took the 16 Department eighteen months—from November 2018 to May 2020—to issue the Regulations in the 17 first place. See 85 Fed. Reg. at 30,031. 18 There is also no guarantee that the Department will rescind the Regulations. Assistant 19 Secretary Goldberg’s letter does not indicate exactly how the Department intends to change the 20 Regulations. Unlike some of President Biden’s other executive orders that explicitly reverse the 21 prior administration’s actions, Executive Order 14,021 only instructs the Department to “review” 22 the Regulations. It is therefore entirely possible that the Department, after a lengthy notice and 23 comment period, decides not to rescind, suspend, or even revise the Regulations. In short, it is 24 highly unlikely the case will be moot within 60 days or anywhere near that time period. As the 25 Regulations remain intact, WSU risks prejudice by the proposed stay, particularly if the stay is 26 extended for substantial periods as the Department may well request. 27 Accordingly, the Court DENIES the Department’s motion for a sixty-day abeyance 1 process to rescind, or otherwise modify the Regulations, in sixty days. 2 The Department is instructed to respond to the complaint within fourteen (14) days of this 3 order. The Court will hold the initial case management conference and hear arguments on the 4 pending motions to intervene, as planned, on July 15, 2021. The briefing schedule for those 5 motions remains unchanged. 6 This order disposes of Docket Nos. 44 and 47. 7 8 IT IS SO ORDERED. 9 10 Dated: June 18, 2021 11 12 ______________________________________ EDWARD M. CHEN 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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