Yes, I was being a little silly and giddy over what is likely a pyrrhic victory, and I don't find the DOE's position surprising. However, the document does not have the force of law, and the DOE's document and position will be challenged. In patent law, patent owners and other stakeholders frequently challenge positions taken by the USPTO, which is under the Department of Commerce. A lot of work for attorneys!!!
Here's what I think will be a key question. I think we can expect the Trump administration to kill this guidance document and to decide to take no enforcement action against schools that decide not to follow a proportional approach. Can the advocates of proportionality then sue the Department? Usually guidance documents are not challengeable in court because they are not considered final agency action. Usually an agency's decisions about whether to take enforcement action are not challengeable in court. OTOH, will schools be fearful that some future administration might require proportionality and follow that approach? I don't know any Title IX experts and so I have no idea what's going to happen.
