Experiment in Campus Jurisprudence

Experiment in Campus Jurisprudence, 2011-2025

Following are key events in the Department of Education’s controversial experiment in campus jurisprudence, with a focus on due process, from 2011 to 2025.

Dear Colleague Letter, 2011 – 2020

2011:

• On April 4, the Department of Education’s Office for Civil Rights issued its Dear Colleague Letter on sexual violence. (Coincidentally, on the same day, Barack Obama announced his plan to run for president in the 2012 election.) The Letter did not undergo public review-and-comment, as required by the Administrative Procedure Act.
• SAVE, the American Association of University Professors and Foundation for Individual Rights in Education sent communications to the OCR calling for the withdrawal of its unlawful policy.
• Over the years, hundreds of articles and editorials would be published critical of the OCR policy.

2012:

• SAVE issued press releases critical of the OCR policy. Over the subsequent years, SAVE would issue dozens of similar press releases.

2013:

• Seven federal lawsuits were filed against colleges.

2014:

• The OCR issued its Questions and Answers on Title IX and Sexual Violence. The White House Task Force to Protect Students from Sexual Assault issued a report endorsing a “single investigator” approach that combines the investigative and adjudicative roles.
• A group of Harvard University law professors issued the statement, Rethink Harvard’s Sexual Harassment Policy.
• The Department of Justice reported the annual rate of sexual assault among college-age females was 6.1/1,000 women, refuting the widely disseminated one-in-five number.
• Twenty-five federal lawsuits were filed against colleges.

2015:

• A group of Penn Law faculty members issued their Open Letter on Sexual Assault Complaints: Protecting Complainants and the Accused Students at Universities
• Forty-five federal lawsuits were filed against colleges.

2016:

• The American Association of University Professors issued a milestone report, The History, Uses, and Abuses of Title IX
• Members of the Senate and House sent letters of concern to the OCR:
  • Sen. James Lankford called on the OCR to explain the legal basis for its policies (January 7)
  • Rep. Virginia Foxx asked Department of Education Secretary-Designate John King to explain a number of OCR abuses (February 24)
  • Sen. Lankford urged John King to “immediately rein in the regulatory abuses” at OCR (March 4)
• Professors from around the country issued the Law Professors’ Open Letter Regarding Campus Free Speech and Sexual Assault
• SAVE issued a Special Report, Lawsuits Against Universities for Alleged Mishandling of Sexual Misconduct Cases, and sent a letter calling on Congress to Rescind and Replace the Dear Colleague Letter (April 4).
• Title IX For All was established, and created a Database of OCR Resolution Letters and a Legal Database of lawsuits against universities.
• Forty-seven federal lawsuits were filed against colleges.

DeVos Title IX Regulation, 2017-2020

2017:

• Betsy DeVos was confirmed by the Senate, by a 51-50 margin, as the new Secretary of Education.
• Five national organizations issued reports strongly critical of the 2011 OCR Dear Colleague Letter:
  • SAVE: Six-Year Experiment in Campus Jurisprudence Fails to Make the Grade
  • American College of Trial Lawyers: Position Statement Regarding Campus Sexual Assault Investigations
  • American Bar Association Task Force for Promoting Fairness in Campus Sexual Misconduct Cases
  • Heritage Foundation: Campus Sexual Assault: Understanding the Problem and How to Fix It
  • National Association of Scholars: OCR’s New Sexual Harassment Guidelines Threaten Academic Freedom, Due Process
• Seventy-eight federal lawsuits were filed against colleges.
• On September 22, 2017, the Office for Civil Rights announced its withdrawal of the 2011 Dear Colleague Letter and its 2014 Questions and Answers on Title IX and Sexual Violence.

2018:

• Supreme Court justice Ruth Bader Ginsburg commented: “There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.”
• In April, 23 Cornell University law school professors filed a brief in court to require the school to follow its own due process policies in a case involving a graduate student about to receive his PhD degree.
• On June 26, the Federalist Society’s Regulatory Transparency Project issued its report, “Ending Sex Discrimination in Campus ‘Sexual Misconduct’ Proceedings.”
• On November 29, a Due Process Statement signed by nearly 300 leading law professors, other legal experts, and scholars was released. The Statement outlined principles for the investigation and adjudication of campus sexual assault allegations.
• By coincidence, the Department of Education released its draft Title IX regulation on the same day.

2019:

• In response to the issuance of the draft regulation, over 120,000 comments were submitted to the Department of Education. Many of them were supportive of the proposed rule.
  •  SAVE:
    • Fourteen Appellate Court Decisions Support Proposed Regulations
    • Proposed Title IX Regulations Target Sex Bias on College Campuses
  • National Association of Scholars

2020:

• On May 6, 2020, the Department of Education issued its new Title IX Regulation, which took effect on August 14.
• In response, lawsuits to block implementation of the new regulation were filed by the following organizations:

• • 18 Attorneys General from PA, NJ, CA, CO, DE, DC, IL, MA, MI, FL, GA, IN, KY LA, MS, NE, OK, SC, SD, and TN
  • State of New York
  • Victim Rights Law Center
  • American Civil Liberties Union
• None of these lawsuits were successful in blocking the 2020 Title IX regulation.

Biden Title IX Policy, 2021-2023

Shortly after becoming president in 2021, Joe Biden initiated the process of removing the 2020 regulation, and developing a controversial new Title IX regulation that would remove key due process protections for the accused and change the legal definition of “sex” to “gender identity.”

2021:

• Catherine E. Lhamon was confirmed by the Senate as director of the Office for Civil Rights.
• SAVE established the Title IX Network, eventually consisting of 240 national, state, and and local organizations, all opposed to the Biden Title IX policy.
• The Women’s Student Union filed a lawsuit to block the new regulation.
• In August, OCR issued its Letter Regarding Court Ruling Vacating Title IX Regulation Restricting Postsecondary Schools’ Use of Statements by Parties and Witnesses
• The Foundation for Individual Rights in Education reported that as a result of the 2020 regulation, many schools had adopted new due process procedures, with 90% of top universities guaranteeing the presumption of innocence for Title IX misconduct proceedings.

Reversing the Biden Title IX Policy, 2024-2025

In historic actions, the U.S. Supreme Court issued one decision, federal judges rendered numerous opinions, and President Donald Trump issued several Executive Orders. As a result, the Biden Title IX regulation was overturned.

2024:

• Federal Judge Rulings Against the Department of Education

1. States of Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia, and theChristian Educators Association International and A.C.
   • June 17, 2024: Judge Danny Reeves issued a preliminary injunction for the states of TN, KY, OH, IN, VA, and WV.
   • July 17, 2024: The Sixth Circuit Court of Appeals denied the Department of Education’s request to stay Judge Reeve’s decision.
   • January 9, 2025: Judge Reeves issued a “vacatur” decision, thereby blocking the regulation on a nationwide basis.
2. States of Louisiana, Mississippi, Montana, and Idaho, Louisiana Department of Education, Rapides Parish School Board, and 17 Louisiana School Districts

1. • June 13, 2024: Judge Terry Doughty issued a temporary injunction against the Title IX regulation in the states of LA, MS, MT, and ID
   • July 17, 2024: The Fifth Circuit Court of Appeals denied the Department of Education’s request to stay Judge Doughty’s decision.
2. States of Kansas, Alaska, Utah, and Wyoming, Moms for Liberty, Young America’s Foundation, et al.
   • July 2, 2024: Judge John Broomes issued a preliminary injunction for the states of KS, AL, UT, and WY, and for the schools attended by children of Moms for Liberty and by members of the Young America’s Foundation.
3. State of Texas and Two UT-Austin Professors
   • July 11, 2024: Judge Matthew Kacsmaryk issued an injunction for the state of Texas.
4. Carroll Independent School District (Texas)
   • July 11, 2024: Judge Reed O’Connor issued an order enjoining  implementation of the regulation in the Carroll Independent School District.
   • February 19, 2024: Judge O’Connor issued a decision that vacated the entire 2024 Title IX regulation.
5. States of Arkansas, Missouri, Iowa, Nebraska, North Dakota, and South Dakota
   • July 24, 2024: Judge Rodney Sippel issued an injunction for these six states.
6. States of Alabama, Florida, Georgia, and South Carolina, and the Independent Women’s Law Center, Independent Women’s Network, Parents Defending Education, and Speech First
   • June 18, 2024: SAVE filed an amicus brief in support of the necessity of due process.
   • July 30, 2024: Judge Annemarie Carney Axon denied the request for a preliminary injunction.
   • August 22, 2024: The Eleventh Circuit Court granted an injunction against the regulation, reversing the decision of Judge Axon.
7. State of Oklahoma
   • July 31, 2024: Judge Jodi Dishman issued a preliminary injunction for Oklahoma.

• Supreme Court
  • August 16, 2024: The Supreme Court ruled on the appeal by the Department of Education, retaining the stay issued for the Louisiana and Tennessee lawsuits by a 5-4 vote.

2025:

• Federal Judge Ruling Against the Dept. of Health and Human Services

The DHHS issued a Rule that would require states to pay for gender-transition interventions, based on a definition of sex that includes “gender identity.”

• On October 22, 2025, Judge Guirola issued a final decision in favor of the 15 plaintiff states.
• On July 3, in response to a complaint from the States of TN, MS, AL, GA, IN, KS, KY, LA, NE, OH, OK, SC, SD, VA, and WV,  Judge Louis Guirola, for the Southern District of Mississippi, issued a nationwide preliminary injunction against the DHHS Rule.

Executive Orders by President Donald Trump

• January 20: Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government
• January 28: Protecting Children From Chemical and Surgical Mutilation
• January 29: Ending Radical Indoctrination in K-12 Schooling
• February 5: Keeping Men Out of Women’s Sports
• March 20: Executive Order to dismantle the Department of Education:

  “The Secretary of Education shall, to the maximum extent appropriate and permitted by law, take all necessary steps to facilitate the closure of the Department of Education and return authority over education to the States and local communities while ensuring the effective and uninterrupted delivery of services, programs, and benefits on which Americans rely.”

• February 4: The Department of Education issued a letter confirming that it would enforce the 2020 Title IX regulation, not the 2024 policy.