Case Summary
Can the Biden Administration be trusted to defend the signature achievement of the previous administration’s Secretary of Education, Betsy DeVos?
It doesn’t take a crystal ball to see that that is doubtful.
Join the Fight
Since 1977, MSLF has fought to protect private property rights, individual liberties, and economic freedom. MSLF is a nonprofit public interest legal foundation. We represent clients pro bono and receive no government funding. Make your 100% tax deductible contribution today and join the fight.
Case History
In May 2020, after years of considering and responding to public comments, the Department of Education issued final regulations addressing sexual harassment in schools under Title IX, which generally bars schools from discriminating on the basis of sex.
The regulations were balanced. For the first time ever, protections against sexual harassment were enshrined into federal regulations under Title IX. At the same time, students and staff accused of sexual harassment had a right to due process before they could be disciplined, expelled, or fired.
Activist groups promptly sued. And Biden, despite being himself accused of violent sexual assault of a former staffer, opposed the due process measures in the new regulations. “It’s wrong,” then-candidate Biden stated in May of 2020, in a tweet that made headlines. “And, it will be put to a quick end in January 2021.’”
The Foundation for Individual Rights in Education (FIRE) tried to join a lawsuit against the regulations in Massachusetts, by filing a motion for intervention. But FIRE didn’t want to stop the regulations. They wanted to help *defend* the validity of the new Title IX regulations that Secretary DeVos had issued.
But the trial court denied the effort, saying that the government (then under President Trump’s watch) could be trusted to defend the regulations on their own. In February 2021, now under Biden’s new tenure, the 1st Circuit Court of Appeals affirmed the trial court’s decision.
FIRE has now asked the Supreme Court to weigh in, and reverse those decisions, so it can defend the legality of the regulations. In order to win, FIRE has to push back against the presumption that the government can be trusted to defend its own regulations, especially when a shift in administrations occurs, like it did here.
In the meantime, despite FIRE’s pending appeal, the trial court went ahead and ruled in the underlying lawsuit. It held that one part of the new regulations is invalid, and returned the issue to the Department of Education to reconsider it. Of course, the folks who Secretary DeVos tasked with drafting and issuing the 2020 regulations are now gone; the agency is firmly in the control of Biden’s political appointees. Indeed, Biden’s pending nominee for the Office for Civil Rights said that the 2020 regulations made it permissible to “rape and sexually students with impunity.”
Where does Mountain States Legal Foundation come in? Well, the trial court got it wrong in invalidating part of the new regulations. Demonstrably. And MSLF, which is filing a brief in support of FIRE, can prove it. MSLF’s brief cites to all of the parts of the new regulations that counter the trial court’s order.
But who is left to appeal that decision? Right now, only the Biden Administration. Unless FIRE is allowed into the case, one part of the new regulations may die. Secretary DeVos’s signature achievement—which took years to accomplish—may simply disappear if the Biden Administration is left in charge of defending it. MSLF’s brief therefore also recounts all of the ways that the Biden Administration can’t be trusted.
