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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KNOW YOUR IX, et al.,

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v.

Civil Action No. RDB-20-01224

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ELISABETH D. DEVOS, in her official *
Capacity as Secretary of Education, et al.,
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Defendants.
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MEMORANDUM OPINION
In May of 2020, the U.S. Department of Education promulgated a rule seeking to
define sexual harassment under any education program receiving federal financial assistance.
Plaintiffs Know Your Title IX, Council of Parent Attorneys and Advocates, Inc., Girls for
Gender Equity, and Stop Sexual Assault in Schools filed a lawsuit on May 14, 2020, asserting
that certain provisions of this new rule violated federal law. Specifically, they contend that
those provisions of the Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance regulation, 85 Fed. Reg. 30,026 (May 19,
2020) (to be codified at 34 C.F.R. pt. 106) (‘Rule”), contravene the Administrative
Procedures Act (“APA”). (Compl. For Decl. & Inj. Relief ¶¶ 142-46, ECF No. 1.) Plaintiffs
seek an order declaring the Rule violates the APA, as well as vacatur of the Rule and
injunctive relief as appropriate.

(Id. at 45-46.)

Defendants, Elisabeth D. Devos, U.S.

Secretary of Education, Kenneth L. Marcus, Assistant Secretary for Civil Rights at the
Department of Education, and the U.S. Department of Education have filed a Motion to

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Dismiss Plaintiffs’ Complaint on the grounds that each of the Plaintiffs lack standing. 1
Three of the Plaintiffs have no independent Article III standing. Supreme Court precedent
provides that in a case of multiple Plaintiffs, only one must establish standing. Thus, all four
Plaintiffs in this case must look to the standing of the lead Plaintiff Know Your Title IX,
which has not adequately alleged facts to establish its standing to bring this action.
Accordingly, for the reasons that follow, Defendants’ Motion to Dismiss is GRANTED and
Plaintiffs’ Complaint is DISMISSED WITHOUT PREJUDICE.
BACKGROUND
Title IX of the Education Amendments of 1972 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 Supreme Court has held
that sexual harassment and sexual assault may constitute unlawful sex discrimination. See,
e.g., Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999). In May 2020, the U.S. Department
of Education (“ED”) promulgated a rule that clearly defines behavior constituting sexual
harassment under Title IX, as well as sets forth procedures for addressing such misconduct.
See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving
Federal Financial Assistance, 85 Fed. Reg. 30,026 (May 19, 2020) (to be codified at 34 C.F.R.
pt. 106) (“Rule”). This is the first time the ED has issued regulations that treat such acts as
unlawful sex discrimination as well.

1 The pending Motion to Intervene as Defendants (ECF No. 20) by the Foundation for Individual Rights in Education,
the Independent Women’s Law Center, and Speech First, Inc. is DENIED AS MOOT in light of this Court’s Dismissal
of this case.

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Plaintiffs Know Your Title IX, a project for Advocates for Youth; Council of Parent
Attorneys and Advocates, Inc. (“COPAA”); Girls for Gender Equity (“Gender Equity”);
and Stop Sexual Assault in Schools (“SSAIS”) (collectively, “Plaintiffs”) challenged the
promulgation of the Rule. The Plaintiffs are nonprofits dedicated to eliminating the barriers
created by sexual violence and harassment to equal educational access through education,
resource and service support, and advocacy on behalf of students who have experienced
sexual harassment and assault. (See Compl. For Decl. & Inj. Relief ¶¶ 22-25, ECF No. 1.)
The Plaintiffs filed suit against the ED and Secretary Elisabeth DeVos and Assistant
Secretary for Civil Rights Kenneth L. Marcus, in their official capacities, in May 2020,
arguing that the Rule “radically reduced the responsibility of schools to respond to
complaints of sexual harassment and assault, creating an arbitrary and wholly unexplained
disparity between its treatment of sex discrimination on the one hand, and race, national
origin, and disability discrimination on the other.” (Compl. For. Decl. & Inj. Relief ¶ 1, ECF
No. 1.)
The ED has previously issued various “guidance” explaining how it believed schools
should resolve allegations of sexual harassment (including sexual assault). See, e.g., 66 Fed.
Reg. 5512-01 (Jan. 19, 2001). In 2014, the ED announced it would engage in rulemaking on
the subject. Dear Colleagues Letter from Assistant Secretary for Civil Rights (Sept. 22, 2017),
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf.

The

ED released its proposed rule on November 29, 2018. 83 Fed. Reg. 61,462 (Nov. 29, 2018)
(NPRM). The final Rule was released publicly on the ED’s website on May 6, 2020, and it
was formally published in the Federal Register on May 19, 2020. 85 Fed. Reg. 30,026 (May
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19, 2020). The Plaintiffs allege that the Rule includes several provisions that are contrary to
both the language and spirit of Title IX, and not only depart significantly from consistent
past practice, but create a “double standard” in which educational institutions have
dramatically different obligations to respond to different forms of discrimination. (Compl.
For. Decl. & Inj. Relief ¶ 11, ECF No. 1.) The unlawful provisions, the Plaintiffs allege,
include:
a. Redefining sexual harassment to exclude many instances of misconduct
that currently fall within the ED’s definition, and that continue to fall
under the ED’s definition of harassment based on race, national origin,
and disability (34 C.F.R. § 106.30(a))
b. Excluding off-campus incidents from the definition of sexual harassment
(Id. § 106.44(a))
c. Limiting the category of school officials who are obligated to report
allegations of sexual harassment (Id. § 106.30(a))
d. Permitting and in some cases requiring a clear and convincing evidence
standard in sexual harassment hearings (Id. § 106.45(b))
e. Imposing a deliberate indifference standard on schools charged with
preventing and ending sexual harassment (Id. § 106.2(h))
The Plaintiffs complain that these provisions are arbitrary and capricious and an
abuse of discretion under the APA. 5 U.S.C. § 706(2). On July 31, 2020, the Defendant
filed a Motion to Dismiss, arguing that all four Plaintiffs lack standing to bring this suit. (See
ECF No. 34-1.)
STANDARD OF REVIEW
Article III of the U.S. Constitution limits the jurisdiction of federal courts to actual
“Cases” and “Controversies.” U.S. Const. art. III, § 2. One element of this case and
controversy requirement is that plaintiffs must demonstrate that they have standing to sue.
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Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). Rule 12(b)(1) of the Federal Rules of
Civil Procedure permits a defendant to challenge the court’s subject matter jurisdiction over
the plaintiff’s suit. Under Rule 12(b)(1), the plaintiff bears the burden of proving, by
preponderance of evidence, the existence of subject matter jurisdiction. See Demetres v. E. W.
Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015).
“A defendant may challenge subject-matter jurisdiction in one of two ways: facially or
factually.” Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017). A facial challenge involves
the allegation “that a complaint simply fails to allege facts upon which subject matter
jurisdiction can be based.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (quoting
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). Accordingly, the plaintiff is “afforded
the same procedural protection as she would receive under a Rule 12(b)(6) consideration,”
wherein “the facts alleged in the complaint are taken as true,” and the defendant’s challenge
“must be denied if the complaint alleges sufficient facts to invoke subject matter
jurisdiction.”

Id.

By contract, in a factual challenge, the defendant argues “that the

jurisdictional allegations of the complaint [are] not true,” providing the trial court the
discretion to “go beyond the allegations of the complaint and in an evidentiary hearing
determine if there are facts to support the jurisdictional allegations.” Id. (first alteration in
original) (quoting Adams, 697 F.2d at 1219).

Thus, with a factual challenge, “the

presumption of truthfulness normally accorded a complaint’s allegations does not apply.” Id.
The Court should only grant a Rule 12(b)(1) motion based on a factual challenge to subject
matter jurisdiction if the facts are not in dispute and the moving party is entitled to prevail as
a matter of law. See Na’tl Fed’n of the Blind v. U.S. Dep’t of Educ., 407 F. Supp. 3d 524, 530 (D.
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Md. 2019) (internal citations omitted). In this case, the Government challenges standing “on
the pleadings,” therefore this Court will “accept as true all material allegations of the
complaint and construe the complaint in favor of the complaining party.” Deal v. Mercer
Cnty. Bd. of Educ., 911 F.3d 183, 187 (4th Cir. 2018).
ANALYSIS
Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and
“Controversies.” U.S. Const. art. III, § 2. The doctrine of standing gives meaning to these
constitutional limits by “identify[ing] those disputes which are appropriately resolved
through the judicial process.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “The law of Article III standing,
which is built on separation-of-powers principles, serves to prevent the judicial process from
being used to usurp the powers of the political branches.” Clapper, 568 U.S. at 408. To
establish Article III standing and invoke federal jurisdiction, a plaintiff must show (1) an
“injury in fact,” (2) a sufficient “causal connection between the injury and the conduct
complained of,” and (3) a “likelihood” that the injury “will be redressed by a favorable
decision.” Susan B. Anthony List, 157-58 (quoting Lujan, 504 U.S. at 560-61). The party
invoking federal jurisdiction bears the burden of establishing standing. Id. at 158. “[E]ach
element must be supported in the same way as any other matter on which the plaintiff bears
the burden of proof, i.e., with the manner and degree of evidence required at the successive
stages of the litigation.” Lujan, 504 U.S. at 561. At the pleading stage, general factual
allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to

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dismiss we “presum[e] that general allegations embrace those specific facts that are necessary
to support the claim.” Id. (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883-89 (1990)).
The Court’s standing decisions make clear that “standing is not dispensed in gross.”
Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008). To the contrary, “a plaintiff must
demonstrate standing for each claim he seeks to press and for each form of relief that is
sought.” Id. However, this does not mean that in the case of multiple plaintiffs, each
plaintiff must prove his own standing. “[T]he Supreme Court has made it clear that ‘the
presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy
requirement.’” Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014) (quoting Rumsfeld v. Forum
for Acad. & Inst’l Rights, Inc., 547 U.S. 47, 52 n.2 (2006)); see also Town of Chester, N.Y. v. Laroe
Ests., Inc., 137 S. Ct. 1645, 1650-51 (2017); Horne v. Flores, 557 U.S. 433, 445 (2009) (quoting
Summers v. Earth Island Inst., 555 U.S. 488, 491-94) (“Here, as in all standing inquires, the
critical question is whether at least one petitioner has ‘alleged such a personal stake in the
outcome of the controversy as to warrant his invocation of federal-court jurisdiction.’”).
Therefore, in this case, this Court must find at least one plaintiff with standing in order for
the Plaintiffs’ case to survive the Defendants’ Motion to Dismiss. If it does so, this Court
need not analyze Defendants’ arguments regarding the remaining Plaintiffs. See Am. Coll. of
Obstetricians & Gynecologists v. U.S. Food & Drug Admin., 2020 WL 3960625, at *8 (D. Md. July
13, 2020) (analyzing only whether one plaintiff has standing).
There are two specific types of standing relevant to this case: organizational standing
and associational standing. Organizational standing provides that an organization may claim
standing in its own right by adequately alleging the standing requirements as they apply to
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individuals, namely that the organization itself has suffered an injury in fact that is fairly
traceable to the challenged action of the defendant and is likely redressable by a favorable
decision from the court.

S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at

Broadlands, LLC, 713 F.3d 175, 182 (4th Cir. 2013).

By contrast, associational standing

(sometimes called “representational standing”) allows an organization to establish standing
“only as [a] representative[ ] of [its] members who have been injured in fact, and thus could
have brought suit in their own right.” Id. at 183-84 (quoting Simon v. E. Ky. Welfare Rts., 426
U.S. 26, 40 (1976)). To plead associational standing:
an organization must allege that ‘(1) its own members would have standing to
sue in their own right; (2) the interests the organization seeks to protect are
germane to the organization’s purpose; and (3) neither the claim nor the relief
sought requires the participation of individual members in the lawsuit.’
Id. at 184 (quoting Summers, 555 U.S. at 498). The Supreme Court has clarified that to show
that its members would have standing, an organization must “make specific allegations
establishing that at least one identified member had suffered or would suffer harm.” Summers,
555 U.S. at 498.
Three of the Plaintiffs in this case have no independent Article III standing.
Specifically, COPAA, Gender Equity, and SSAIS have no independent Article III standing
and must look to the standing of Know Your Title IX.

That lead Plaintiff has not

adequately alleged facts to establish its standing to bring this action.
I.

Council of Parent Attorneys and Advocates, Inc. (“COPAA”)
COPAA is a nonprofit membership organization that aims to protect and enforce the

legal and civil rights of students with disabilities and their families. (Compl. For Decl. & Inj.
Relief ¶ 23, ECF No. 1.) Through the provision of education, training, and technical
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assistance to professionals and laypersons, COPAA works to secure high-quality educational
services for students with disabilities and to promote excellence in special education
advocacy. (Id.) Some of COPAA’s attorneys and advocate members represent complainants
and respondents, including students with disabilities, in Title IX processes. (Id.)
COPAA alleges associational standing, arguing that it has standing as an organization
on the basis of its representation of one of its members, who was injured in fact and,
therefore, could have brought suit in her own right. (Id. at ¶¶ 131-34.) The Plaintiffs’
Complaint alleges generally that COPAA’s members who advocate on behalf of students will
be injured by challenged provisions of the Rule. (Id. at ¶ 131.) The Complaint then points
to a specific member of COPAA, a Michigan attorney later identified as Elizabeth Abdnour,
who joined COPAA in 2018. (Id.) COPAA provides that Ms. Abdnour’s “private practice
primarily entails representing K-12 and college students, as well as higher education staff and
faculty, in Title IX proceedings and advocating on behalf of K-12 special education students
seeking services in their public schools.” The Complaint alleges that because changes in the
Rule will cause student complaints to face “more hurdles and be less likely to succeed,” this
attorney will have fewer administrative complaints to file, and the cases she does pursue “will
be more difficult and take more time to resolve.” (Id. at ¶ 132.) The Complaint further
alleges that the changes to the Rule will “reduce clients’ incentives to pursue administrative
relief,” forcing Ms. Abdnour to focus her efforts on seeking relief in court. (Id. at ¶ 133.)
These changes will demand from the attorney “increased time and resources” and prohibit
her from taking as many cases. (Id. at ¶ 133-34.) The Defendants argue that Ms. Abdnour

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would lack standing in her own right, and, therefore, COPAA lacks standing as well. (ECF
No. 34-1 at 20.) This Court agrees.
First, the Plaintiff’s theory is too speculative and does not establish an “actual or
imminent” injury. Lujan, 504 U.S. at 560. It relies on numerous assumptions, including how
many clients will seek her services; what sorts of claims such individuals might have; and
how expensive or difficult the cases she gets may be. Further, even if COPAA’s predictions
about the effect on Ms. Abdnour’s personal legal practice are correct, COPAA’s argument
seems to “hinge[ ] on an attorney’s desire to assist her clients in a regulatory environment
that she prefers.” (See ECF No. 34-1 at 20.) Attorneys do not suffer a recognizable injury in
fact under Article III whenever the law causes changes to their docket or “they take
measures to protect their clients’ rights or alter their litigation strategy amid legal
uncertainty.” Habeas Corpus Res. Ctr. v. U.S. Dep’t of Just., 816 F.3d 1241, 1250 (9th Cir. 2016).
Additionally, even if COPAA’s claim for injury is instead characterized as economic,
rather than merely a shift in the difficulty or composition of the attorney’s law practice, the
injury remains speculative, as well as outside the zone of interests that Congress sought to
protect in Title IX. Under the APA, a plaintiff must show that she is either “suffering a legal
wrong because of agency action” or “adversely affected or aggrieved by agency action within
the meaning of a relevant statute.” 5 U.S.C. § 702. A party claiming the latter, such as
COPAA here, must establish that the injury it complains of “falls within the ‘zone of
interests’ sought to be protected by the statutory provisions whose violation forms the legal
basis for his complaint.” Lujan, 497 U.S. at 883. As the Plaintiffs recognize in their
Complaint, Congress’s goals in enacting Title IX were to (1) avoid the use of federal
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resources to support discriminatory practices and (2) provide individual citizens effective
protection against those practices. (Compl. For Decl. & Inj. Relief ¶ 17.) Congress was not
concerned with the revenue flow of private attorneys. An attorney does not gain standing
any time a change in the law causes her legal practice to shift or become less lucrative. Ms.
Abdnour does not have a recognizable injury in fact under Article III that would allow her to
bring suit in her own right, and therefore, neither does COPAA.
II.

Girls for Gender Equity (“Gender Equity”)
Gender Equity is a 501(c)(3) nonprofit corporation founded to create opportunities

for, and to remove systematic barriers from, the development of girls (cisgender and
transgender) and non-binary youth of color. (Compl. For Decl. & Inj. Relief ¶ 24, ECF No.
1.) It carries out this mission through direct service, policy advocacy and organizing, and
cultural change. (Id.) Gender Equity claims to have organizational standing to bring this suit.
The Complaint provides that:
[g]iven the diminished responsibility under federal law for schools to respond
to reports of sexual harassment and assault under the challenged provisions of
the final Rule, [Gender Equity] will need to dedicate additional staff time and
resources to advocate at the local and state levels for measures that are proven
to prevent the occurrence of sexual harassment and assault . . . .
(Id. at ¶ 138.) In other words, Gender Equity seems to claim that because the Rule is bad
policy, it will have to spend more of its time and resources lobbying to have this policy
changed. The United States Court of Appeals for the Fourth Circuit has rejected this type of
claim.
In in Lane v. Holder, 703 F.3d 668, 671 (4th Cir. 2012), a gun-rights organization
whose activities included advocacy as well as “education, research, publishing and legal
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action,” challenged a federal firearm statue. The group alleged that it had suffered an Article
III injury because it needed to divert resources in order to help its members navigate the
new law, and thus could not spend those funds on other goals. Id. The Fourth Circuit held
that voluntary “budgetary choices” are not cognizable injuries under Article III. Id. at 675.
“To determine that an organization that decides to spend its money on educating members,
responding to members’ inquiries, or undertaking litigation in response to legislation suffers
a cognizable injury would be to imply standing for organizations with merely ‘abstract
concern[s] with a subject that could be affected by an adjudication.’” Id. (quoting Simon v. E.
Ky. Welfare Rts. Org., 426 U.S. 26 40 (1976)).
In CASA de Maryland, Inc. v. Trump, 971 F.3d 220, 238-41 (4th Cir. 2020) the Fourth
Circuit examined Lane and held that a voluntary reallocation of resources is insufficient to
establish organizational standing. The Fourth Circuit, “to put a finer point on it,” explained
that “it is not relevant for Article III purposes whether [the plaintiff] felt moved to act in a
particular manner.” Id. at 238. As the Court found, “[m]any statutes and regulations may
spur private organizations to react to them in some fashion.” Id. at 239 (citing Lujan, 504
U.S. at 561-62). “[A] voluntary budgetary decision, however well-intentioned, does not
constitute Article III injury, in no small part because holding otherwise would give carte
blanche for any organization to ‘manufacture standing by choosing to make expenditures’
about its public policy of choice.” Id. (quoting Clapper, 568 U.S. at 402). Even if Gender
Equity’s decision to expend more resources to advocate against the ED’s new policies is
well-intentioned, it is still a voluntary spending decision that does not create a recognizable
injury in fact under Article III.
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In support of their claim for injury, the Plaintiffs cite this Court’s decision in
Knowledge Ecology Int’l v. Nat’l Insts. of Health, 2019 WL 1585285 (D. Md. Apr. 11, 2019). In
that case, Judge Messitte of this Court did in dicta note that a “diversion of resources away
from the organization’s primary mission in order to address an allegedly improper action
may suffice to establish standing.” Id. at *4. However, as in this case, the plaintiffs, like
Gender Equity, could not show such injury. The plaintiffs argued that they had expended
resources on their suit against the defendant, National Institute of Health, to advocate
against a private license granted by the organization. Id. at *6. This Court held that such
injury was “the very type of manufactured injury that is not recognized for standing
purposes.” Id. Judge Messitte continued, explaining that the plaintiff’s “core purpose” as an
organization was “pursuing precisely the type of advocacy it undertook” and that resources
spent on litigating the case in front of the court were “very much in line with [the plaintiff’s]
core mission rather than a diversion of resources away from it.” Id.
The same is true in the case at hand. Gender Equity claims that its core mission is
carried out through policy advocacy.

If this Court were to allow a party whose

organizational mission is to engage in policy advocacy to claim injury on the basis of a need
to engage in that exact activity, any advocacy group could find standing to challenge laws
when there are changes in policy. To hold in such way would be contradictory to Knowledge
Ecology International, as well as the longstanding principle that the doctrine of standing limits
the jurisdiction of the courts by “identify[ing] those disputes which are appropriately
resolved through the judicial process.” Susan B. Anthony List, 573 U.S. at 157. Gender
Equity’s alleged injury is “no more than a mere disagreement with the policy decisions” of
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the ED, Md. Shall Issue, Inc. v. Hogan, 963 F.3d 356, 362 (4th Cir. 2020), and therefore, is
insufficient to provide Gender Equity with standing to bring this suit.
III.

Stop Sexual Assault in Schools (“SSAIS”)

SSAIS is a nonprofit education and advocacy organization. (Compl. For Decl. & Inj.
Relief ¶ 25, ECF No. 1.) Its mission is to prevent sexual harassment and assault in K-12
schools by educating students, families, and schools about K-12 students’ right to an
education free from sex discrimination. (Id.) SSAIS’s claims are similar to that of Gender
Equity. The Complaint alleges that “[f]ollowing issuance of the Rule, SSAIS must now
dedicate a substantial amount of time to analyzing the Rule . . . , assessing existing or needed
state or local parallel protections to fill in gaps created by the challenged provisions of the
Rule, recreating educational materials, and providing technical assistance to students,
families, educators, and journalists.” (Id. at ¶ 138.) SSAIS claims that such “diversion of
resources” will cause SSAIS to “lack the capacity and time to pursue projects it had planned
to accomplish in 2020.” (Id.) It also claims that because of the “confusing and contradictory
policy landscape” created by the Rule, it will have to update its informational and training
materials and “engage in the resource-draining task of recreating itself as an expert in state
and local policies.” (ECF No. 38 at 33.)
Again, this Court finds the Plaintiffs’ arguments to be in conflict with CASA de
Maryland. As the Fourth Circuit held, “it is not relevant for Article III purposes whether [the
plaintiff] felt moved to act in a particular manner.” CASA, 971 F.3d at 238. SSAIS’s
resource reallocations, although they may be motivated by sincere policy preferences, “are

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not cognizable organizational injuries because no action by the defendant has directly
impaired the organization’s ability to operate and to function.” Id. at 239.
Additionally, even if SSAIS could allege some recognizable injury, it cannot show
how such injury was caused by the ED’s alleged violation of the APA, or how it “will be
redressed by a favorable decision.” Lujan, 504 U.S. at 561. SSAIS’s argument is that it has
suffered injury by having to read the Rule and tell people what it says. Even if the ED had
issued a Rule that SSAIS preferred, it presumably would still need to “dedicate a substantial
amount of time to analyzing the Rule . . . , assessing existing or needed state or local parallel
protections . . . , recreating educational materials, and providing technical assistance to
students, families, educators, and journalists.” (Id. at ¶ 138.) Further, if the ED’s policies
were to change as a result of this litigation, SSAIS would then presumably have to once again
edit its materials in order to accommodate the changes. Any alleged violations of the APA
are not the legal cause of SSAIS’s alleged injury. See Comcast Corp. v. Nat’l Ass’n of Af. Am.Owned Media, 140 S. Ct. 1009, 1014 (2020) (describing but-for causation as the idea that “a
plaintiff must demonstrate that, but for the defendant’s unlawful conduct, its alleged injury
would not have occurred”). There is no remedy this Court can provide to redress SSAIS’s
harm. SSAIS lacks Article III standing to bring this suit.
IV.

Know Your Title IX
Plaintiff Know Your Title IX is a survivor-and-youth project of Advocates for

Youth. (See Compl. For Decl. & Inj. Relief ¶ 22, ECF No. 1.) The organization’s goal is “to
empower high school and college students to end sexual and dating violence in their
schools” through “legal rights education; training, organizing, and supporting student15

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survivor activists; and advocating for campus, state, and federal policy change.” (Id.) Like
Gender Equity and SSAIS, Know Your Title IX argues that it has organizational standing,
claiming that the injury it has suffered is one to Know Your Title IX itself. (See ECF No. 38
at 18.) Know Your Title IX claims that “[t]he Rule’s provisions directly frustrate Know
Your Title IX’s mission.” (Id.) The organization claims that the Rule depresses the number
of survivors who can access Title IX remedies. (Id. at 18-19.) For example, Know Your
Title IX claims that the Rule reduces the number and types of conduct or events that may be
investigated by schools in Title IX proceedings through both its narrowed definition of
“sexual harassment” and effective exclusion of off-campus incidents. (Id.) Therefore, the
Plaintiffs’ claim, the Rule reduces the number of survivors who will be eligible for remedies
to help them complete their education that are only available through these proceedings.
(Id.)

Know Your Title IX alleges that because of the resulting overall reduction in

complaints, the Rule’s provisions “stand in the way of Know Your Title IX’s . . . goal of
bringing greater attention to survivors’ actual experiences and ensur[ing] their stories are not
buried.” (Id.)
In sum, Know Your Title IX alleges that the Rule runs “at cross-purpose” with the
organization’s objectives. (Id.) This general conflict allegedly inflicts practical harm on
Know Your Title IX’s work as an organization. Know Your Title IX claims that the Rule
“requires” the organization to make fundamental changes in the way it prepares students to
engage in school-based advocacy and to support survivors, and accordingly, that Know Your
Title IX will have to redraft documents and training plans, which will require “a huge
reallocation of staff time and budget, away from activities it had planned to embark on this
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year.” (Id. at 20.) It is true that an organization like Know Your Title IX “may suffer an
injury in fact when a defendant’s actions impede its efforts to carry out its mission.” CASA,
971 F.3d at 237 (citing Lane, 703 F.3d at 674). However, again, this Court finds that the
Plaintiffs’ arguments are rejected under Lane and CASA de Maryland. The Fourth Circuit has
squarely held that “[r]esource reallocations motivated by the dictates of preference, however
sincere, are not cognizable organizational injuries because no action by the defendant has
directly impaired the organization’s ability to operate and to function.” Id. at 239.
Know Your Title IX does attempt to distinguish its own case from that of the
plaintiffs in Lane and CASA de Maryland. In the Complaint, Know Your Title IX alleges that
in anticipation of the Rule, it received a “spike in training requests” for Spring 2020, and
further, that it “expects the number of calls and training requests to increase further now
that the Rule has been released.” (Compl. For Decl. & Inj. Relief ¶ 126, ECF No. 1.) This
claim differs slightly from their other arguments related to Know Your Title IX’s frustration
of purpose and general voluntary spending changes, but as presently alleged, Know Your
Title IX has not sufficiently alleged any facts that reflect and support an increased
expenditure of resources as a result of the promulgation of the Rule.
In SurvJustice Inc. v. DeVos, No. 18-cv-00535-JSC, 2018 WL 4770741, at *4 (N.D. Cal.
Oct. 1, 2018), order amended on reconsideration, No. 18-CV-00535-JSC, 2010 WL 1434144 (N.D.
Cal. Mar. 29, 2019), the plaintiffs were three non-profit advocacy organizations and, like
Know Your Title IX, claimed that an ED action would require a diversion of resources that
would impede their various daily operations and frustrate their organizational missions. The
court did find standing on such grounds.
17

Id. at *6.

The plaintiffs argued that, as

 Case 1:20-cv-01224-RDB Document 43 Filed 10/20/20 Page 18 of 19

organizations that advocated for survivors of sexual harassment, a “chilling effect” on the
filing of sexual harassment and sexual violence complaints made it increasingly difficult for
them to fulfill their organizational missions. Id. While the defendants in SurvJustice argued
that this chilling effect was merely “subjective” and “speculative,” the court noted that the
allegations were instead “observed”—the Plaintiffs produced details of decreases in the filing
of student complaints

Id. The plaintiffs further alleged that, when asked, their clients

directly attributed their hesitancy in filing to the ED action at issue. Id.
In this case, Know Your Title IX has not alleged the same observable change in
response to the Rule. The Plaintiffs have not provided any details about the number or
nature of the pre-Rule requests (Compl. For Decl. & Inj. Relief ¶ 125, ECF No. 1), nor
whether the alleged increase occurred as expected (Id. at ¶ 126). At this point, Know Your
Title IX’s concerns about an increase in the number of calls and training requests that it will
receive in reaction to the Rule are merely speculative. While the Supreme Court has held
that “threatened injuries” may be sufficient to meet the requirements for injury in fact under
Article III, Clapper, 568 U.S. at 408, the Supreme Court has also been clear that such threats
must be “certainly impending” in order to “ensure that the alleged injury is not too
speculative for Article III purposes,” Lujan, 504 U.S. at 564 n.2. Know Your Title IX has
not yet sufficiently alleged any uptick in calls in response to the Rule. Furthermore, under
the Fourth Circuit’s decisions in Lane and CASA de Maryland, it would still need to show
causation, namely, how such uptick would cause an involuntary reallocation of resources and
that the ED’s actions “ha[ve] directly impaired the organization’s ability to operate and to
function.” CASA, 971 F.3d at 239.
18

 Case 1:20-cv-01224-RDB Document 43 Filed 10/20/20 Page 19 of 19

Know Your Title IX’s standing theory grounded in the frustration of its mission and
diversion of resources cannot create standing for all the Plaintiffs because it is insufficient at
this time to meet the injury in fact requirement for Article III standing. Know Your Title IX
has not demonstrated that the Rule forced the organization to take action as a matter of law.
Its “unilateral and uncompelled response to the shifting needs of its members cannot
manufacture an Article III injury.” See id. at 238.
CONCLUSION
For the reasons stated above, the Motion to Intervene by Intervenor
Defendants Foundation for Individual Rights in Education, Independent Women’s
Law Center, and Speech First, Inc. (ECF No. 20) is DENIED AS MOOT.
Defendants’ Motion to Dismiss (ECF No. 34) is GRANTED and this case is
DISMISSED WITHOUT PREJUDICE. A Separate Order follows.

Dated: October 20, 2020

/s/
Richard D. Bennett
United States District Judge
19