Apart from defending Title IX lawsuits in Texas, Nebraska, Illinois, and the District of Columbia based on its Dear Colleague Letters (transgender bathroom/locker room guidance and guidance announcing the preponderance of the evidence standard for campus sexual harassment and assault disciplinary proceedings), the U. S. Department of Education now is a defendant in a Title IV student aid-related lawsuit.  As with the Title IX litigation, the Title IV-related suit (filed in Utah) by the Center for Excellence in Higher Education contends the Department failed to follow the Administrative Procedure Act (APA)–that the Department acted arbitrarily and capriciously in failing to recognize the Center’s non-profit status for purposes of participation in Title IV federal student aid.

How these cases get resolved remains an open question, though at least two courts (TX and NC)) have given hints on how they view Title IX.  What is clear is the requirements of the APA (notice and comment rulemaking and arbitrary and capricious provisions) have finally arrived center stage in Title IX and Title IV litigation.