Hunter v. U.S. Dep't of Educ.

ELIZABETH HUNTER, et al., Plaintiffs, v. U.S. DEPARTMENT OF EDUCATION, et al., Defendants.

No. 6:21-cv-00474-AA

United States District Court, D. Oregon, Eugene Division

August 30, 2021

OPINION AND ORDER

Ann Aiken, United States District Judge.

Plaintiffs bring this putative class action against the United States Department of Education (the “Department”) and Suzanne Goldberg, Acting Assistant Secretary for Civil Rights of the Department, challenging defendants' application of the religious exemption included in Title IX of the Education Amendments of 1972 to sexual and gender minority (“LGBTQ+”) students who attend private religious colleges and universities that receive federal funding. They assert claims for violations of the First and Fifth Amendments, the Administrative Procedure Act (“APA”), and the Religious Freedom Restoration Act (“RFRA”).

Now before the Court is plaintiffs' motion for a temporary restraining order (“TRO”). Doc. 44. This matter has been fully briefed since August 17, 2021. Docs. 62, 64. Plaintiffs also recently filed a motion to amend their requested TRO. Doc. 75. Although defendants' time to respond has not yet expired, the Court has determined that both matters are suitable for resolution now and without a hearing. LR 7-1(d)(1). For the following reasons plaintiffs' Motion to Amend is GRANTED, but their Initial and Amended Motions for TROs are DENIED.

STANDARDS

In deciding whether to grant a motion for a temporary restraining order, courts look to substantially the same factors that apply to a court's decision on whether to issue a preliminary injunction. Fed.R.Civ.P. 65; New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S 1345, 1347 n.2 (1977). A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Defense Council Inc., 555 U.S. 7, 22 (2008).

A plaintiff seeking preliminary injunctive relief generally must show that: (1) the plaintiff is likely to succeed on the merits; (2) the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in the plaintiff's favor; and (4) an injunction is in the public interest. Id. (rejecting the Ninth Circuit's earlier rule that the mere “possibility” of irreparable harm, as opposed to its likelihood, was sufficient, in some circumstances, to justify a preliminary injunction). So long as all four parts of the Winter test are applied, a preliminary injunction may issue if a plaintiff demonstrates that “there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012).

BACKGROUND

Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]” 20 U.S.C. § 1681(a). The statute includes a religious exemption, which provides that Title IX “shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization[.]” Id. § 1681(a)(3).

The Department is the federal agency with primary responsibility for administrative enforcement of Title IX. The Department's regulations implementing Title IX are set forth at 34 C.F.R. Part 106. These regulations contain a provision implementing the religious exemption, 34 C.F.R. § 106.12, which outlines the procedures institutions must follow to assert such an exemption.

Plaintiffs are forty LGBTQ+ people who applied to, attended, or currently attend religious colleges and universities (“religious schools”) that receive federal funding. They allege that their schools have discriminated against them by, among other things, subjecting them to discipline (including expulsion), rejecting their applications for admission, and rescinding their admissions because of their sexual orientation or gender identity. Plaintiffs seek to represent a class of “LGBTQ+ students who attend taxpayer-funded religious colleges and universities that openly discriminate against them in both policy and practice.” First Amend. Compl. (doc. 35) ¶ 574.

Plaintiffs allege that defendants facilitate and encourage their schools' discrimination by failing to enforce Title IX against the schools based on defendants' application of the religious exemption. Plaintiffs assert that the religious exemption, as applied to the proposed class, violates the First, Fifth, and Fourteenth Amendments and RFRA. Plaintiffs also allege that defendants' August and November 2020 amendments to 34 C.F.R. § 106.12(b) and (c), respectively, are arbitrary and capricious, in violation of the APA.

In March 2021, 33 plaintiffs filed this action. Doc. 1. On June 7, 2021, seven new plaintiffs joined the original 33 in filing a First Amended Complaint (“FAC”). Doc. 35. Thirty-five plaintiffs filed Title IX complaints with the Department's Office for Civil Rights (“OCR”) between June 23, 2021 and August 2, 2021. Corr. Decl. of Lauren Swain, 8/13/2021 (doc. 61), Exs. A-D. On August 5, 2021, plaintiffs filed a Motion for a Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Enter (doc. 44), alleging that their complaints “are in danger of being dismissed at any moment” based on the religious exemption and related administrative regulations. TRO Mot. (doc. 44) at 9. Defendants filed their response opposing the motion on August 13, 2021. Doc. 62. Plaintiffs filed their reply on August 17, 2021. Doc. 64. On August 25, 2021, plaintiffs filed a Motion to Amend Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Enter (doc. 75), seeking to amend their requested preliminary injunctive relief and alleging that 11 plaintiffs have returned to campus or will do so soon, that hostility towards plaintiffs and other LGBTQ+ students have escalated at many plaintiffs' schools, and that defendants are “stonewalling” plaintiffs' administrative complaints. Mot. to Amend (doc. 75) at 2-12.

DISCUSSION

I. Plaintiffs' Motion to Amend (doc. 75)

Although defendants' time to respond to plaintiffs' Motion to Amend has not expired, the Court GRANTS the motion because plaintiffs rely on the “legal and factual arguments contained in Plaintiffs' Original Motion” and, as explained below, plaintiffs have not shown that they are entitled to the additional relief sought in this motion. Id. at 13. Thus, granting the motion does not change the outcome of plaintiffs' request for preliminary injunctive relief.

The additional relief that plaintiffs request in their Motion to Amend presents a textbook case of a “mandatory injunction, ” a form of preliminary injunctive relief that is “particularly disfavored.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009). Unlike a “prohibitory injunction, ” which “prohibits a party from taking action and preserve[s] the status quo pending a determination of the action on the merits[, ]” “[a] mandatory injunction orders a responsible party to take action.” Id. at 878-79 (internal quotation marks omitted). “The status quo . . . means the last, uncontested status which preceded the pending controversy.” Id. at 879 (internal quotation marks omitted).

Plaintiffs ask the Court to order defendants to (1) investigate the schools attended by plaintiffs for compliance with the sexual orientation and gender identity requirements of Title IX and its implementing regulations, begin negotiations seeking voluntary compliance from noncompliant schools, and, if need be, initiate enforcement proceedings against schools that remain noncompliant; and (2) rescind or void previously granted Title IX religious exemption requests, many of which have been in place for decades. Mot. to Amend. (doc. 75) at 14-15. These are clearly affirmative steps, aimed at altering the existing status quo between the parties.

A plaintiff seeking a TRO or preliminary injunction must generally show that they are “likely to succeed on the merits.” Winter, 555 U.S. at 22. But when a plaintiff requests a “mandatory injunction, ” the “already high standard” for success on the merits is “further heightened, ” and the plaintiff must “‘establish that the law and facts clearly favor her position, not simply that she is likely to succeed.'” Innovation Law Lab v. Nielsen, 310 F.Supp.3d 1150, 1156-57 (D. Or. 2018) (quoting Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (emphasis in Garcia)). Upon review of the record, the Court cannot find that plaintiffs have shown a likelihood of success on the merits of their Fifth Amendment, Establishment Clause, APA, or RFRA claims, ^[1]let alone that the law and facts clearly favor their position. The parties dispute whether plaintiffs have standing, whether their claims are ripe, and whether their non-APA claims state a claim as a matter of law.^[2] Based on the arguments and evidence currently before the Court, defendants' jurisdictional arguments are not clearly meritless and, at best, plaintiffs have shown serious questions going to the merits of their claims.^[3]

II. Plaintiffs' Initial TRO Motion (doc. 44)

Plaintiffs' initial motion also appears, at least in part, to seek a mandatory injunction, in that the requested injunction would require OCR to investigate administrative complaints it would otherwise dismiss under the religious exemption. TRO Mot (doc. 44) ...