1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 THE WOMEN'S STUDENT UNION, Case No. 21-cv-01626-EMC

8 Plaintiff,

ORDER GRANTING DEFENDANT’S

9 v. MOTION TO DISMISS

10 U.S. DEPARTMENT OF EDUCATION, Docket No. 61 11 Defendant.

12 13 14 Plaintiff the Women’s Student Union (WSU) filed this action against Defendant the U.S. 15 Department of Education (the “Department”) to set aside regulations enacted in 2020 that reduce 16 federal protections for students enrolled in public schools from sexual harassment and sexual 17 violence under Title IX of the Education Amendments of 1972, 20 U.SC. § 1681(a). See Docket 18 No. 1 (“Compl.”) ⁋ 8 (citing 85 Fed. Reg. 30,026 (May 19, 2020) (codified at various places in 34 19 C.F.R. Pt. 106) (the “2020 Regulations”)). Plaintiff alleges that the 2020 Regulations violate the 20 Administrative Procedure Act (APA), 5 U.S.C. §§ 706(2)(A), (C), because they are contrary to the 21 text and purpose of Title IX. Compl. ⁋ 84. 22 Pending before the Court is the Department’s motion to dismiss this action for lack of 23 subject matter jurisdiction and for failure to state a claim pursuant to Federal Rules of Civil 24 Procedure 12(b)(1) and 12(b)(6), respectively. See Docket No. 61 (“Mot”). For the following 25 reasons, the Court GRANTS the Department’s motion because Plaintiff lacks standing.1 26 27 1 I. BACKGROUND 2 A. Title IX Enforcement Before the 2020 Regulations 3 Title IX of the Education Amendments states that “[n]o person in the United States shall, 4 on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to 5 discrimination under any education program or activity receiving Federal financial assistance.” 20 6 U.S.C § 1681(a). The statute defines “program or activity” as “all of the operations” of a school, 7 “any part of which is extended Federal financial assistance.” Id. § 1687. Federal agencies that 8 disburse funds to educational institutions—including the Department of Education—are 9 “authorized and directed” by Congress to “effectuate the provisions of” Title IX “by issuing rules, 10 regulations, or orders of general applicability.” Id. § 1682. These agencies can compel school 11 districts to comply with the provisions of Title IX—and its implementing regulations—by 12 threatening to withhold federal education funds from noncompliant school districts. Id. 13 There are two ways to enforce Title IX. First, a plaintiff (usually a student) can sue a 14 school for damages in federal court as Title IX provides a private right of action. See 15 Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 76 (1992). In such cases, however, students 16 can recover “only for harassment that is so severe, pervasive, and objectively offensive that it 17 effectively bars the victim’s access to an educational opportunity or benefit,” and they must prove 18 the school’s “deliberate indifference to known acts of harassment in its programs or 19 activities.” Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999). This standard is met 20 only if “an official who at a minimum has authority to address the alleged discrimination and to 21 institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in 22 the recipient’s programs and fails adequately to respond.” Gebser v. Lago Vista Indep. Sch. Dist., 23 524 U.S. 274, 290 (1998). This strict definition of sexual harassment and the requirements of 24 actual knowledge and deliberate indifference are known as the “Gebser/Davis framework.” 85 25 Fed. Reg. at 30,032. 26 Second, Title IX may be enforced administratively by the Department through the issuance 27 of rules, regulations, and guidance documents. See Gebser, 524 U.S. at 292 (“Agencies generally 1 nondiscrimination mandate, 20 U.S.C. § 1682, even if those requirements do not purport to 2 represent a definition of discrimination under the statute.”). The Department’s own regulations 3 require its Office for Civil Rights (OCR) to investigate any administrative complaint it receives 4 from a member of the public that indicates gender-based discrimination or sexual harassment. See 5 34 C.F.R. § 100.7(c) (“[R]esponsible Department official or his designee will make a prompt 6 investigation whenever a . . . complaint . . . indicates a possible failure to comply.” (emphasis 7 added)); Id. § 106.71 (Title IX regulation incorporating the procedural provisions of the 8 Department’s Title VI regulations). If the investigation “indicates a failure to comply” with the 9 regulations, the OCR “will so inform the recipient and the matter will be resolved by informal 10 means whenever possible.” Id. § 106.7(c). Because investigations are required, Plaintiff alleges 11 school districts are almost always willing to settle to avoid the termination of their federal funding. 12 See Docket No. 1 (“Compl.”) ⁋ 76. 13 Importantly, Plaintiff alleges that, until the 2020 Regulations were enacted, the 14 Department’s OCR had “consistently” issued guidance to school districts “rejecting the view that 15 the courts’ standards for determining whether a private damages action could be brought against a 16 school should be incorporated into its administrative enforcement process.” Docket No. 1 17 (“Compl.”) ⁋⁋ 27–28 (citing Sexual Harassment Guidance, 62 Fed. Reg. 12,034 (Mar. 13, 1997) 18 (the “1997 Guidance”); Revised Sexual Harassment Guidance, 66 Fed. Reg. 5,512-01 (Jan. 19, 19 2001) (the “2001 Guidance”)). Indeed, the 2001 Guidance adopted a broader scope of liability for 20 administrative enforcement of Title IX than under the Gebser/Davis framework by (1) defining 21 sexual harassment as “unwelcome conduct of a sexual nature” that is “severe, persistent, or 22 pervasive;” and (2) concluding that a schools is liable “whether or not it has ‘notice’ of the 23 harassment.” U.S. Dep’t of Educ., Off. for Civil Rights, Revised Sexual Harassment Guidance: 24 Harassment of Students by School Employees, Other Students, or Third Parties (Jan. 19, 2001), 25 https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf (emphasis added). 26 B. The 2020 Regulations Incorporated the Gebser/Davis Framework 27 On May 19, 2020, under the leadership of then-Secretary of Education Elisabeth DeVos, 1 and largely aligned the standards for the OCR’s adjudication of Title IX administrative complaints 2 with the Gebser/Davis framework. See 85 Fed. Reg. at 30,033 (“The Department believes that 3 adapting the Gebser/Davis framework is appropriate for administrative enforcement, because the 4 adapted conditions (definitions of sexual harassment and actual knowledge) and liability standard 5 (deliberate indifference) reflected in these final regulations promote important policy objectives 6 with respect to a recipient’s legal obligations to respond to sexual harassment.”). Plaintiff 7 complains that, under the 2020 Regulations, schools must respond only to harassment that (1) is 8 “severe, pervasive, and objectively offensive conduct” (2) “takes place on school grounds (or in 9 an education program), regardless of where its effect is felt;” and (3) “a school employee has 10 actual knowledge of the harassment;” and that (4) a “school may act with indifference to the 11 harassment, as long as it avoids being ‘deliberately indifferent.’” Compl. ⁋ 66; see also 85 Fed. 12 Reg. at 30,032–34. 13 C. Plaintiff’s Administrative Complaint 14 Plaintiff is “an approved student body association of the Berkeley Unified School District 15 (BUSD) of Berkeley, California.” Compl. ⁋ 16. Plaintiff’s mission includes reducing sexual 16 harassment experienced by students at Berkeley High School (BHS) by “(1) advocating that the 17 school district adopt policies to protect its members and the student body from sex discrimination, 18 including sexual harassment; and (2) [] providing training to the student body about their rights 19 and responsibilities under school policy, state law, and federal law.” Id. Plaintiff also explains 20 that it seeks to address “other barriers to success and wellbeing for young women and non-binary 21 students at [BHS].” Id. Plaintiff contends that many high school students enrolled in BUSD, 22 including Plaintiff’s members, “experience sexual harassment, which poses an obstacle to their 23 ability to learn and thrive in school.” Id. ⁋ 2. Plaintiff specifies that injuries to the students “result 24 not just from the initial harassment alone, but because their school fails to respond to the 25 harassment promptly and appropriately.” Id. ⁋⁋ 2-5, 15. 26 In February 2021, Plaintiff filed an administrative complaint with the Department’s OCR 27 against BUSD, alleging several violations of Title IX that Plaintiff contends are “no longer 1 Permitting harassment that is severe but not pervasive, including unwelcome exposure to others’ genitalia. 2 Permitting harassment that is pervasive but not severe, including 3 students’ circulation of sexualized images of a classmate and regular comments by groups of students, usually young men, concerning the 4 appearances and sexual histories of their classmates, usually young women. 5 Failing to take steps to discover and remediate instances of 6 commonplace harassment, such as that occurring in Zoom “breakout rooms,” digital spaces in which small groups or dyads of students 7 converse on video without a teacher present.

8 Failing to investigate and address harassment that occurs off campus but impacts survivors’ education, including sexual assaults 9 committed by students with whom the victims share classes and, during COVID-19, harassing messages sent and received through 10 students’ personal phones while students share online classrooms.

11 Failing at times to respond to sexual harassment in a prompt and effective manner, and instead, for example, tolerating the open 12 presence of an informal club dedicated to sexually harassing students and placing the burden on victims to avoid contact with 13 their harassers and even transfer out of shared classes, especially when the underlying harassment occurred off campus. 14 Failing to take action that addresses all the persons adversely 15 affected by sexual harassment, not just the complainant. 16 Id. ¶ 77. 17 According to Plaintiff, “[b]ut for the Department’s 2020 Regulations,” the OCR would 18 have investigated its administrative complaint. Id. ⁋ 81. But under the new regulatory framework, 19 the OCR “will not investigate [Plaintiff’s] administrative complaint, and will not provide any 20 relief to [Plaintiff]” because the injuries alleged are no longer cognizable under the 2020 21 Regulations. Id. ⁋ 77-78. Plaintiff also claims that even if the OCR were to investigate some or 22 all of the allegations in its administrative complaint, “the Department’s 2020 Regulations do not 23 require and, in fact, discourage [BUSD] from taking actions that were previously required under 24 the Department’s prior interpretations of Title IX and that [Plaintiff] wishes its school to take.” Id. 25 ⁋ 82. Ultimately, Plaintiff contends that “the 2020 Regulations . . . deprive [Plaintiff] of a critical 26 bargaining tool as it seeks to achieve these changes at [BUSD] as part of [Plaintiff’s] 27 organizational purpose.” Id. 1 D. Procedural History and Recent Events 2 On March 8, 2021, Plaintiff filed the original complaint against the Department seeking to 3 enjoin the 2020 Regulations and to declare them invalid under the APA for contravening the text 4 and purpose of Title IX. Id. The State of Texas and three groups—the Foundation for Individual 5 Rights in Education, Independent Women’s Law Center, and Speech First, Inc.—filed motions to 6 intervene in this case on April 7 and May 24, 2021, respectively. See Docket Nos. 19, 35. 7 Shortly after Plaintiff filed its complaint, President Joseph R. Biden Jr. issued Executive 8 Order 14,021 instructing the new Secretary of Education, Miguel Cardona, “to review the [2020 9 Regulations] and consider whether [they] should be suspended, revised, or rescinded.” See Docket 10 No. 44 at 1 (citing Exec. Order No. 14,021, 86 Fed. Reg. 13,803 (Mar. 8, 2021)). As a result, on 11 June 11, 2021, the Department filed a motion to stay the case for sixty days while it reviewed the 12 2020 Regulations. Id. This Court denied the Department’s stay motion citing the unlikelihood 13 that the Department would conduct a notice and comment rulemaking process to rescind, or 14 otherwise modify the 2020 Regulations, before the sixty days were over. See Docket No. 56. The 15 Department then filed the instant motion to dismiss the case for lack of subject matter jurisdiction 16 on July 1, 2021. See Mot. 17 II. LEGAL STANDARD 18 Under Rule 12(b)(1), a party may move to dismiss for lack of subject matter jurisdiction. 19 “[L]ack of Article III standing requires dismissal for lack of subject matter jurisdiction under 20 [Rule] 12(b)(1).” Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011). The “irreducible 21 constitutional minimum” of standing requires that a “plaintiff must have (1) suffered an injury in 22 fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to 23 be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins (“Spokeo II”), 136 S. Ct. 24 1540, 1547 (2016). These three elements are referred to as, respectively, injury-in-fact, causation, 25 and redressability. Planned Parenthood of Greater Was. & N. Idaho v. U.S. Dep't of Health & 26 Human Servs., 946 F.3d 1100, 1108 (9th Cir. 2020). “The plaintiff, as the party invoking federal 27 jurisdiction, bears the burden of establishing these elements,” which at the pleadings stage means 1 Warth v. Seldin, 422 U.S. 490, 518 (1975)). 2 A Rule 12(b)(1) jurisdictional attack may be factual or facial. See Safe Air for Everyone v. 3 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack,” “the challenger asserts that the 4 allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” 5 Id. The court “resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): 6 Accepting the plaintiff’s allegations as true and drawing all reasonable inferences in the plaintiff’s 7 favor, the court determines whether the allegations are sufficient as a legal matter to invoke the 8 court’s jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). 9 “[I]n a factual attack, the challenger disputes the truth of the allegations that, by 10 themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 11 1038. In resolving such an attack, unlike with a motion to dismiss under Rule 12(b)(6), the Court 12 “may review evidence beyond the complaint without converting the motion to dismiss into a 13 motion for summary judgment.” Id. Moreover, the court “need not presume the truthfulness of 14 the plaintiff's allegations.” Id. 15 Either way, “it is within the trial court’s power to allow or to require the plaintiff to supply, 16 by amendment to the complaint or by affidavits, further particularized allegations of fact deemed 17 supportive of plaintiff’s standing.” Warth, 422 U.S. at 501; see also Table Bluff Reservation 18 (Wiyot Tribe) v. Philip Morris, Inc., 256 F.3d 879, 882 (9th Cir. 2001) (in assessing standing, the 19 court may consider “the complaint and any other particularized allegations of fact in affidavits or 20 in amendments to the complaint”). 21 III. DISCUSSION 22 An organization can establish two types of standing under Article III: (1) organizational 23 standing and (2) associational (also known as representational) standing. “Organizational standing 24 . . . turn[s] on whether the organization itself has suffered an injury in fact.” Smith v. Pac. Props. 25 and Dev. Corp., 358 F.3d 1097, 1101 (9th Cir. 2004) (citing Havens Realty Corp. v. Coleman, 455 26 U.S. 463, 378–79 (1982)). By contrast, associational standing is where “[an organization] can 27 establish standing only as representative[] of those of [its] members who have been injured in fact, 1 26, 40 (1976). 2 Plaintiff has failed to establish that it has organizational or associational standing. 3 A. Organizational Standing 4 “Organizations are entitled to sue on their own behalf for injuries they have sustained.” 5 Havens, 455 U.S. at 379 n.19. “[A]n organization may satisfy the Article III requirement of injury 6 in fact if it can demonstrate: (1) frustration of its organizational mission [by the defendant’s 7 actions]; and (2) diversion of its resources to combat [that frustration].” Smith, 358 F.3d at 1105. 8 Because Plaintiff fails to establish that the 2020 Regulations have frustrated its organizational 9 mission under the first prong of the organizational standing test, the Court need not address 10 whether Plaintiff has had to divert its resources under the second prong. 11 1. Frustration of Plaintiff’s Mission 12 “Where a defendant’s conduct has ‘perceptibly impaired’ an organizational plaintiff’s 13 ‘ability to provide [services to its clients], there can be no question that the organization has 14 suffered injury in fact.’” SurvJustice Inc. v. Devos, No. 18-cv-00535-JSC, 2018 LEXIS 169485 15 (N.D.Cal. Oct. 1, 2018) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)). 16 Plaintiff alleges that the 2020 Regulations will frustrate its mission because “schools under the 17 [2020] Regulations will be required to engage in fewer investigations of sexual harassment, and 18 thus will find fewer violations and provide fewer remedies.” Compl. ⁋ 34. This is because, 19 according to Plaintiff, “the 2020 Regulations’ narrowed definition of ‘sexual harassment’ will 20 undoubtedly reduce reporting even further as students reasonably fear that schools will not provide 21 any meaningful response if they file a report.” Id. ⁋ 45; see also id. ⁋ 53 (“[The 2020 Regulations] 22 will undoubtedly reduce reporting [of sexual harassment incidents] even further.”). As a result of 23 this reduction in sexual harassment reporting, Plaintiff vaguely alleges it will have “no choice but 24 to take actions that are both time consuming and less effective, such as conducting their own 25 investigations into patterns of harassment at [BUSD] and meeting with school administrators . . . 26 [b]ecause WSU cannot count on the [OCR] to investigate the [BUSD] and spur changes to its 27 1 policies and practices.” Id. ⁋ 80.2 2 These allegations fail to establish that the 2020 Regulations frustrate Plaintiff’s mission for 3 at least two reasons. First, and most importantly, Plaintiff’s stated mission is not to ensure that 4 specific instances of sexual harassment at BHS are investigated; rather, it is to advocate that the 5 school adopt protective policies and to train the students about their rights and responsibilities 6 under the law. Id. ⁋ 16. That the subject of its mission—Berkeley High School—may be less 7 cooperative as a result of the new regulations is not the kind of concrete frustration of mission that 8 affords standing. Plaintiff argues the 2020 Regulations frustrate its mission because it leaves it 9 “no choice but to take actions that are both time consuming and less effective, such as conducting 10 their own investigations into patters of harassment at [BUSD] and meeting with school 11 administrators.” Compl. ⁋ 80. But Plaintiff may not establish injury by engaging in activities that 12 it would normally pursue as part of its organizational mission. It is a fair inference that 13 conducting investigations and meeting with school administrators are valid ways—or even 14 necessary—for Plaintiff to pursue its mission of advocating BHS for more protective policies and 15 training BHS students. Plaintiff does not explain why spending time engaging in these activities 16 would be “time consuming and less effective,” let alone contrary to its mission. As another court 17 put it: “[i]f this Court were to allow a party whose organizational mission is to engage in policy 18 advocacy to claim injury on the basis of a need to engage in that exact activity, any advocacy 19 group could find standing to challenge laws when there are changes in policy.” Know Your IX v. 20 DeVos, No. CV RDB-20-01224, 2020 WL 6150935, at *6 (D. Md. Oct. 20, 2020). Therefore, 21 Plaintiffs’ allegations are not sufficient to establish that the 2020 Regulations frustrate its mission. 22 The instant case stands in contrast to SurvJustice, 2018 WL 4770741, and Victim Rights 23 Law Center v. Cardona, No. CV 20-11104-WGY, 2021 WL 3185743 (D. Mass. July 28, 24 2 Plaintiff also alleges that it has organizational standing because, “[w]ithout a doubt, the [OCR] 25 will not investigate [Plaintiff’s] administrative complaint.” Compl. at ⁋ 78 (emphasis added). Not only is this allegation conclusory and speculative; it also appears to be incorrect. In its briefs and 26 at oral argument the Department clearly stated that it was in the process of reviewing Plaintiff’s administrative complaint and that it recently asked Plaintiff for more information. See Mot. at 7– 27 8; Docket No. 65 (“Reply”) at 7–8. Although the Department did not commit to an exact deadline 1 2021), where the Department’s actions frustrated the missions of organizations that provided legal 2 representation and counseling to sexual harassment survivors. The plaintiffs in SurvJustice were 3 challenging the Department’s new guidance “related to the procedures by which educational 4 institutions investigate, adjudicate, and resolve allegations of student-on-student sexual 5 misconduct” (the “2017 Guidance”), which preceded the issuance of the 2020 Regulations. 2018 6 WL 4770741, at *3. The plaintiffs there—unlike Plaintiff here—had missions that included “to 7 increase the prospect of justice for survivors of sexual violence. . . through legal assistance;” “to 8 litigate[] cases involving issues of gender discrimination in employment and education at all 9 stages. . . [and to] counsel[] and represent[] women who have been victims of sexual harassment 10 and/or sexual assault in matters pursuant to Title IX;” and “to provide legal representation to 11 victims of rape and sexual assault.” 2018 WL 4770741, at *4 (emphases added). Because the 12 2017 “Guidance discourage[d] survivors of sexual harassment and sexual violence from filing 13 complaints,” Magistrate Judge Corley concluded it frustrated these organizations’ missions, which 14 involved prosecuting those very same complaints. Id. at *6–*7. Similarly, Judge Young of the 15 District of Massachusetts held that Victim Rights Law Center “demonstrate[d] a direct impairment 16 from the [2020 Regulations]” because it “advocate[d] on behalf of victims of sexual assault during 17 the Title IX process,” and “experienced a reduction in requests for its services.” Victims Rts. Law 18 Ctr., 2021 WL 3185743, at *10; Cf. E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 663 (9th 19 Cir. 2021) (regulations requiring asylum seekers to “remain detained . . . near the border hundreds 20 of miles away” frustrated organizations’ “mission of assisting migrants seeking asylum” because 21 they “cannot represent [those detained] asylum seekers”). 22 Here, by contrast, Plaintiff’s mission does not include representing, advocating for, or 23 providing legal assistance to individual sexual harassment survivors. Indeed, unlike in SurvJustice 24 and Victim Rights Law Center, the complaint here does not explain how fewer reports and 25 investigations of sexual harassment make it harder, i.e., “perceptively impair,” Plaintiff’s ability to 26 advocate for more protective policies at BHS or to train BHS’s students. 27 Indeed, the instant case is similar to Know Your IX, where Judge Bennett of the District of 1 establish that the 2020 Regulations frustrated their missions for purposes of organizational 2 standing. 2020 WL 6150935, at *5. Like Plaintiff here, the plaintiffs in Know Your IX alleged 3 that

4 [g]iven the diminished responsibility under federal law for schools to respond to reports of sexual harassment and assault under the 5 challenged provisions of the final Rule, [the plaintiffs] will need to dedicate additional staff time and resources to advocate at the local 6 and state levels for measures that are proven to prevent the occurrence of sexual harassment and assault.... 7 8 Id. at *5. Gender Equity “claim[ed] that its core mission [was] carried out through policy 9 advocacy,” and Know Your IX’s “goal [was] to empower high school and college students to end 10 sexual and dating violence in their schools through legal rights education; training, organizing, and 11 supporting student-survivor activists; and advocating for campus, state, and federal policy 12 change.” Id. at *6–*7. Like Plaintiff here, neither organization represented or offered legal 13 services to sexual harassment survivors who filed complaints. Id. at *6. Although the Know Your 14 IX plaintiffs argued they had to spend more time and resources to accomplish their mission, the 15 court concluded that “resource reallocations motivated by the dictates of preference, however 16 sincere, are not cognizable organizational injuries because no action by the defendant has directly 17 impaired the organization’s ability to operate and function.” Id. at *7 (emphasis added) (quoting 18 CASA de Maryland, Inc. v. Trump, 971 F.3d 220, 239 (4th Cir. 2020)). Plaintiff here has also 19 failed to explain how the Department’s actions would directly impair its ability to operate and 20 function as a policy advocacy and training organization. 21 Second, Plaintiff’s allegations would be insufficient—even assuming Plaintiff explained 22 how a reduction in reporting of sexual harassment incidents could “perceptively impair” its policy 23 advocacy and training efforts—because Plaintiff fails to specifically allege that such a reduction in 24 reporting is actually taking place or is imminent. See TransUnion LLC v. Ramirez, 141 S. Ct. 25 2190, 2203 (2021) (“[T]o establish standing, a plaintiff must show (i) that he suffered an injury in 26 fact that is concrete, particularized, and actual or imminent.” (emphasis added)). The complaint 27 also assumes, without a clear factual basis, that BHS will not protect students from sexual 1 investigate instances of sexual harassment on campus. But there is nothing stopping BHS from 2 addressing instances of sexual harassment on campus, adopting more protective policies, or 3 allowing Plaintiff to train its students, even if the Department is less likely to withhold funding 4 under the 2020 Regulations. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 (2013) (“We 5 decline to abandon our usual reluctance to endorse standing that rest on speculation about the 6 decisions of independent actors.”); Equal Means Equal v. Dep’t of Educ., 450 F. Supp. 3d 1, 8 (D. 7 Mass. 2020) (organizational plaintiff’s mission was not frustrated by the Department’s 2017 8 Guidance because it “d[id] not allege that colleges and universities [were] in fact using the clear 9 and convincing standard of proof, thus making it more difficult for [the plaintiff’s] clients to 10 obtain beneficial outcomes”). Thus, to properly plead that the 2020 Regulations frustrate its 11 mission, Plaintiff needs to add specific facts to the complaint establishing that, as a result of the 12 2020 Regulations, BHS is unwilling to adopt policies that protect students from sexual harassment 13 or to allow Plaintiff to train BHS students. 14 In Equal Means Equal, Judge Saris of the District of Massachusetts held that the National 15 Coalition Against Violent Athletes (NCAVA) had not established that the Department’s 2017 16 Guidance frustrated its stated mission “to advocate for the equal treatment of victims of sex-based 17 harms under civil rights laws,” even though NCAVA “provide[d] legal referrals, counsel and 18 advocacy to [survivors] of sex-based harms.” 450 F. Supp. 3d at 8. She reasoned that NCAVA 19 “[had] not demonstrated a particularized injury traceable to the [2017 Guidance] beyond a general 20 statement that victims have expressed an unwillingness to report sex-based harm to campus 21 authorities.” Id. at *7–*8. In fact, NCAVA’s allegation was simply that “victims ha[d] expressed 22 an unwillingness to report sex-based harm to campus authorities and law enforcement officials.” 23 Id. at *6. Plaintiff’s allegation in the case at bar that “the 2020 Regulations’ narrowed definition 24 of ‘sexual harassment’ will undoubtedly reduce reporting” is just as conclusory. Compl. ⁋ 45. 25 By contrast, the plaintiffs in SurvJustice specifically alleged “an observed decrease in 26 student-filed complaints following issuance of the 2017 Guidance,” and “that their clients ha[d] 27 directly attributed their hesitancy in filing those complaints to the 2017 Guidance.” 2018 WL 1 “attest that it ha[d] actively experienced unwillingness and hesitance from student [survivors] to 2 continue their Title IX complaints” because the 2020 Regulations included a “requirement that the 3 complainant be cross-examined at the Title IX hearing.” 2021 WL 3185743, at *4. Plaintiff here 4 has not alleged that there is an actual or imminent reduction in sexual harassment reporting at 5 BHS with this kind of detailed allegations. 6 Accordingly, Plaintiff does not have organizational standing because it has not plausibly 7 alleged that the 2020 Regulations frustrated its stated mission of advocating BHS for more 8 protective policies or training BHS students about their rights. 9 B. Associational Standing 10 An entity has associational standing where (1) “its members would otherwise have 11 standing to sue in their own right;” (2) “the interests it seeks to protect are germane to the 12 organization’s purpose;” and (3) “neither the claim asserted nor the relief requested requires the 13 participation of individual members in the lawsuit.” AlohaCare v. Hawaii, 572 F.3d 740, 747 (9th 14 Cir. 2009). Because Plaintiff fails to plausibly allege that its members would otherwise have 15 standing to sue in their own right under the first prong of the associational standing test, the Court 16 need not address the other two prongs. 17 To show that a member would have standing to sue in his or her own right, the 18 organization “must show that a member suffers an injury-in-fact that is traceable to the defendant 19 and likely to be redressed by a favorable decision.” Associated Gen. Contractors of Am., San 20 Diego Chapter, Inc. v. Cal. Dep’t of Transp., 713 F.3d 1187, 1194 (9th Cir. 2013). Plaintiff’s 21 complaint includes only speculative and conclusory allegations that the 2020 Regulations deny its 22 members—survivors of sexual harassment at BHS—of “the benefit of having the department 23 investigate and redress many types of harassment [they] have experienced and are currently 24 experiencing.” Compl. ⁋ 15. Indeed, according to Plaintiff,

25 the [OCR] . . . will not provide any relief to WSU and its members, because the 2020 Regulations no longer make it unlawful for 26 purposes of administrative enforcement for the [BUSD] to disregard sexual harassment that is severe but not pervasive (or pervasive but 27 not severe); sexual harassment that originates outside the school’s harassment that the school should reasonably know about, but of 1 which it lacks actual knowledge. 2 Id. at ⁋ 78. These boilerplate allegations merely speculate that the 2020 Regulations will lead 3 BUSD to disregard certain sexual harassment complaints; there are no specific allegations in the 4 complaint that BUSD has in fact disregarded a single sexual harassment complaint or that a single 5 student has chosen not to report or file a complaint after suffering sexual harassment; let alone that 6 there has been a noticeable decline in sexual harassment reports at BHS or BUSD. In other words, 7 there are no allegations that Plaintiff’s members have been injured or will imminently be injured 8 by the 2020 Regulations. Cf. Young v. Trump, No. 20-CV-07183-EMC, 2020 WL 7319434 (N.D. 9 Cal. Dec. 11, 2020) (plaintiffs properly alleged Article III injury-in-fact because their complaint 10 had “common contentions . . . for each named Plaintiff regarding the suspension and withholding 11 of their beneficiaries’ visas under Diplomacy Strong”). 12 Accordingly, Plaintiff has not established that it has associational standing. Although 13 Plaintiff is not required to cite a specific member in its complaint, see National Council of La 14 Raza v. Cegavsk, 800 F.3d 1032, 1041 (9th Cir. 2015), to establish associational standing it must 15 allege with sufficient specificity and detail how its members have been injured or will imminently 16 be injured by the enactment of the 2020 Regulations. 17 IV. CONCLUSION 18 For the foregoing reasons, the Court GRANTS the Department’s motion to dismiss for 19 lack of Article III standing with leave to amend. Plaintiff shall file its amended complaint on or 20 before September 19, 2021. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 1 The pending motions to intervene are now moot because they are based on the allegations 2 in the original complaint, which is hereby dismissed. See Docket Nos, 19, 35. The movants may 3 re-file their motions to intervene, if they so wish, after Plaintiff files its amended complaint. 4 This order disposes of Docket Nos. 19, 35, and 61. 5 6 IT IS SO ORDERED. 7 8 Dated: September 2, 2021 9 10 ______________________________________

EDWARD M. CHEN

11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27