ATIXA issues this position statement to advise members that we discourage institutions covered by the various injunctions from voluntarily implementing the 2024 Regulations on August 1, 2024.[1] Moreover, we urge such schools to take caution in pursuing the implementation of the 2024 Regulations despite the injunctions, and to first consider the risks described below.

We are in an unprecedented period in our field. We have never experienced a regulatory cycle where the new Title IX rules are this broad, have been enjoined in their entirety by several federal courts, and create this much uncertainty regarding which regulations apply where, when, and how.

A concerning idea has emerged that schools covered by the injunction are at liberty to electively implement the 2024 Title IX Regulations, even if they are not required to do so. The argument supporting this idea seems to be that the courts have enjoined the Department of Education (ED), not individual/specific schools, and in doing so, those schools are not prohibited from implementing the regulations in their own education programs. Thus, if they prefer the 2024 Regulations, they are welcome to choose to implement them even if ED will not enforce them. ATIXA believes that despite its potential superficial appeal, this is a very high-risk approach, and we discourage our members from considering it.

Those popularizing this idea are doing so based on their interpretation that ED is only enjoined from enforcing the rule. However, that’s not actually what most of the judges ordered.

The specific language of the Kansas injunction order[2] says:

“U.S. Dept. of Education, the United States Department of Justice, Merrick Garland, Attorney General of the United States…are enjoined from implementing, enacting, enforcing, or taking any action to enforce the Final Rule promulgated by the Department of Education…set to become effective on August 1, 2024…”

The specific language of the Louisiana injunction order[3] says that the Department of Education, the Secretary and Assistant Secretary of Education, OCR, DOJ, and the AG’s offices are:

“Enjoined and restrained from implementing, enacting, enforcing, and taking action in any manner to enforce the Final Rule…which is scheduled to go into effect on August 1, 2024…It is further ordered, adjudged, and decreed that the Final Rule…is hereby enjoined and restrained from going into effect on August 1, 2024…”

The Kentucky injunction order[4] states that the Department of Education and the Secretary of Education are:

“Enjoined and restrained from implementing, enacting, enforcing, or taking any action in any manner to enforce the Final Rule…”

There are two decisions in Texas, the broader of which[5] notes that the Department of Education is:

“Enjoined from implementing, enacting, enforcing, or taking any action in any manner to enforce the Final Rule…”

The other Texas injunction[6] applies only to one school district and only specific requirements of the 2024 regulations but uses the same language of “implementing, enacting, enforcing, or taking any action in any manner to enforce the Final Rule…”

The decision in Arkansas[7] reflects the same language, as well, that the Department is:

“…Enjoined from implementing, enacting, enforcing, or taking any action in any manner to enforce the Final Rule promulgated by the Department of Education…”

Thus, ED’s enforcement of the 2024 Regulations is not the only bar that the courts imposed, as all of the above-listed courts specifically barred ED from implementing and enacting the 2024 Regulations because the court views them as exceeding ED’s authority. One even explicitly stated that the Regs cannot go into effect. ATIXA’s interpretation is that these orders operate — for the schools and states listed in the courts’ orders — as if the 2024 Regulations are not in place and will not take effect on August 1. It is not, as some argue, merely the case that the 2024 Regulations will take effect, but ED will not be able to enforce them.

The orders go much further than that, and here is why that matters. The 2020 Regulations are in place now and have the force and effect of law. They will continue to be in effect until something causes them not to be. That something will be the 2024 Regulations, which will cause the 2020 Regulations to sunset as of July 31, 2024. If those 2024 Regulations do not take effect for certain schools and states, then the language ED uses to phase in the 2024 Regulations and phase out the 2020 Regulations does not exist (at least temporarily, as a result of the various injunctions). If the 2020 Regulations are effectively stopped from sunsetting, and there are no 2024 Regulations to enforce, the logical conclusion is that schools will be expected to comply with the 2020 Regulations until further notice.

Although it is a legally correct position that nothing in the injunctions requires listed schools to do or not do anything, this is only technically correct as an argument. On its face, the orders do not require schools to take specific action, but the effect of the orders is to require schools to continue with the status quo — that is, to comply with the 2020 Regulations.

To be clear, schools have the same choice they always have: to comply or not comply with federal regulations. Yet, a choice not to comply has consequences, and ATIXA cannot in good conscience suggest to our members that the risk of noncompliance is worth any rewards they might experience by moving to 2024-based policies and procedures despite the injunction. Any Title IX respondent accused of violating policy who believes they deserve the protections of the 2020 Regulations and who does not receive those protections can be expected to seek an immediate injunction against any school denying them their rights. Even if OCR does not enforce the 2020 Regulations, the courts may.

With respect to the argument that OCR could decide to “soft-enforce” the 2020 Regulations, and not push enforcement of those rules, that could be true, but it assumes that Democrats will remain in power at ED. ATIXA doesn’t recommend that our members gamble on that outcome. Further, those in the field should take OCR at its word, and on two occasions recently, OCR’s Assistant Secretary for Civil Rights Catherine Lhamon has signaled publicly that the education field should expect OCR to continue to enforce the 2020 Regulations under her leadership. While OCR has not yet spoken about the injunctions publicly, ATIXA believes it would be irresponsible not to raise these concerns with our members, and we suggest they tread carefully and work closely with their legal counsels to evaluate options.

We agree that schools might be able to layer some elements of 2024 compliance over their 2020 policies and procedures, but for now, the safest approach for schools and states subject to these injunctions is to maintain their current 2020 regulatory compliance until further notice.

This position statement has been ratified by the ATIXA Board of Advisors, July 25, 2024.

[1] Injunctions from judges in Kansas, Texas (2x), Louisiana, Arkansas, and Kentucky apply to K-12 and higher education recipients in AK, KS, UT, WY, TX, LA, MS, MT, ID, TN, KY, OH, IN, VA, WV, AR, NE, ND, SD, MO, IA, as well as schools attended by the members of Young America’s Foundation or Female Athletes United, as well as schools attended by the children of members of Moms for Liberty, and Christian Educators International.

[2] State of Kansas, et al. v. U.S. Dept. of Education, et al. (USDC, D. KS, 07/02/24); Applicable to KS, AK, UT, WY, as well as schools attended by the members of Young America’s Foundation or Female Athletes United, and schools attended by the children of members of Moms for Liberty.

[3] State of Louisiana et al. v. U.S. Dept. of Education, et al. (USDC W.D. LA, 06/13/24); Applicable to LA, MS, MT, ID.

[4] State of Tennessee, et al. v. Miguel Cardona, et al. (USDC E.D. KY, 06/17/24); Applicable to TN, KY, OH, IN, VA, WV, and Christian Educators International.

[5] State of Texas, et al. v. U.S.A., et al., (USDC N.D. TX, 07/11/24); Applicable to TX.

[6] Carroll Independent School District v. U.S. Dept of Education (USDC, N.D. TX, 07/11/24); Applicable to Carroll Independent School District.

[7] State of Arkansas et al. v. U.S. Dept. of Education, et al (Case 4:24-cv-00636-RWS). Applicable to AR, NE, IA, ND, SD, and MO.

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