A federal judge in Kentucky on Thursday ruled the 2024 Title IX regulations were “arbitrary and capricious” and in violation of the Administrative Procedures Act (APA). Unlike other courts that had issued injunctions preventing the regulations from being implemented in certain states or by certain schools, this court ordered the rule to be vacated, which means that it now may not be enforced by the Department of Education anywhere in the nation. The 2020 regulations that were in place prior to the issuance of the 2024 regulations are once again the governing Title IX authority.
The Court’s Decision
The ruling resulted from a challenge brought by the states of Kentucky, Tennessee, Indiana, Virginia and West Virginia. Although the challenge to the regulations focused only on certain provisions, such as the inclusion of sexual orientation and gender identity in the definition of “sex” and a requirement for the use of students’ preferred pronouns, the court rejected the Department of Education’s request to limit any ruling to the challenged portions of the rule under the doctrine of severability. The court instead found that the challenged provisions “fatally taint the entire rule.”
What Next?
As of now, the Department of Education can no longer enforce the 2024 Title IX regulations, and the 2020 regulations will once again govern Title IX. However, many open questions remain, such as how the department will use its enforcement authority in light of the change, and how schools should address complaints that were filed and/or resolved under procedures aligned with the now-vacated 2024 regulations.
Schools that had implemented new policies aligned with the 2024 regulations will need to quickly implement (or re-implement) procedures for holding live hearings with an opportunity for cross-examination, as required under the 2020 regulations. Schools may keep policies that are not in conflict with the 2020 rule if they choose. But they will need to issue new policies and retrain and re-educate students, staff and faculty about the changes.
While an appeal of the Kentucky court ruling is possible, with only days left before a change in administration, it appears highly unlikely that there will be any reconsideration of the decision vacating the 2024 regulations, particularly given President-elect Donald Trump’s prior criticisms of the rules. The 2020 regulations were issued during the prior Trump administration, so significant further changes appear unlikely at this time.
Miles & Stockbridge’s labor and employment lawyers will continue to monitor the case and its impact on Title IX regulations and enforcement.
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