Schools throughout the country are preparing to implement the U.S. Department of Education Office for Civil Rights’ (“OCR”) long-awaited final 2024 Title IX regulations. These new regulations, which replace the 2020 regulations, took effect today. In the wake of their release, legal challenges have now surfaced throughout the country, aiming to halt enforcement of the 2024 regulations. We have talked with several clients about these lawsuits’ impact on their individual schools, particularly regarding one court order referencing various schools nationwide. We provide general information about this order below relevant to Illinois schools, but we continue to recommend schools contact legal counsel for advice regarding the impact of these challenges on their particular schools.
To our knowledge, there are no lawsuits involving the state of Illinois or specific Illinois schools or school districts at the time of this publication. However, there is one case currently pending in the U.S. District Court for the District of Kansas, which recently entered an order that applies to several states and extends to specific schools nationwide. In the Kansas case, the court granted a preliminary injunction, which is a court order that requires an entity to either perform or stop performing a specific action. Here, the preliminary injunction prohibits OCR from enforcing the 2024 Title IX regulations at any school where members of the Young America’s Foundation, Female Athletes United, or Moms for Liberty, or their children, attend. At the court’s request, the named plaintiff associations recently filed lists containing the names of hundreds of K-12 and higher education institutions that their members or their members’ children attend, including a number of schools throughout Illinois.
The primary implication of the preliminary injunction for these identified schools, if the court adopts the lists submitted by the organizations, is that OCR cannot require compliance with the 2024 Title IX regulations at these schools. The court’s order does not, however, expressly prohibit these schools from complying with the 2024 regulations or stop the regulations from otherwise taking effect in Illinois. Because a preliminary injunction is temporary in nature, there also remains some uncertainty as to whether or not the injunction will become permanent in the coming months. If the injunction does not become permanent, OCR could immediately require compliance with the 2024 regulations at these schools.
The impact of this injunction on the schools identified nationwide varies greatly, and how individual schools or school districts should proceed will depend on their jurisdiction and specific court orders applicable in that jurisdiction. Accordingly, it is imperative that schools and school districts consult with their legal counsel. With respect to Illinois specifically, most schools are not impacted by the injunction and therefore, should proceed with plans to adopt and implement a new Title IX grievance policy and procedure that complies with the 2024 regulations and training employees in accordance with the requirements of the 2024 regulations as soon as practicable.
For schools that do appear on the lists linked above, OCR expressed its position this morning that the 2024 regulations do not apply to these schools. Accordingly, OCR stated that the named schools should continue following the requirements in the 2020 regulations, pending further court orders. OCR’s position, therefore, is that the named schools keep their current Title IX Grievance Procedures in place for now. While we will continue to closely monitor this evolving legal landscape, we recommend that any Illinois school identified on the Kansas court’s lists linked above consult with legal counsel as to the impact on their particular school or school district and how they should proceed in light of OCR’s position.
The case in the U.S. District Court for the District of Kansas is still in its infancy and we expect litigation to be ongoing for several months before any final decisions are made with respect to the injunction’s permanency. We will continue to closely monitor any activity in this case and others and provide updates to those affected schools.
