We are nearly at the one-month mark with the 2024 Title IX Regulations in effect. Since the August 1 implementation date, school administrators have been busy getting trained, preparing for the school year ahead, and sorting through the different legal challenges to the new regulations. With most students now settling into their classrooms, we’d like to provide an update on all things Title IX.
Training Reminder
As a reminder, the 2024 Title IX Regulations (Final Rule) require all employees to be trained in Title IX employee responsibilities and institutional obligations upon hire, and annually thereafter. The Final Rule also requires all members of the Title IX team—including, but not limited to, Title IX coordinators, investigators, decisionmakers, and informal resolution facilitators—to receive additional training specific to their role. For more information on these new training requirements, you can read our alert here.
Implementation Resources
The 2024 Final Rule also requires you to update your school’s Title IX grievance policy and procedures. Franczek offers support with policy and procedure updates, as well as Title IX Toolkits containing the written documents needed to keep your institution in compliance with the current Title IX regulations, including a compliance action plan, notices, forms, letters, a checklist for Title IX coordinators, and flowcharts for administrators, students and parents. Franczek also offers a model One Policy, One Procedure (1P1P) and corresponding 1P1P Toolkit, should your institution wish to unify its response procedures for all forms of discrimination, harassment, and bullying.
The U.S. Department of Education Office for Civil Rights’ (OCR) has also released new Title IX resources for schools, which can be found on OCR’s website here.
Litigation Updates
As we shared in a previous alert, several federal district courts issued orders enjoining OCR’s enforcement of the 2024 Final Rule in certain states and schools throughout the country.
On August 16, 2024, the U.S. Supreme Court denied the Department of Education’s emergency motions for a partial stay of the preliminary injunction orders enjoining OCR’s enforcement of the Final Rule in two cases: Department of Education v. Louisiana and Cardona v. Tennessee. The emergency motions filed by the Department of Education sought a partial stay of the preliminary injunctions in the Fifth and Sixth Circuits, which encompass Louisiana, Mississippi, Texas, Kentucky, Michigan, Ohio, and Tennessee. In its motions, the Department of Education requested that the Supreme Court sever the provisions of the Final Rules at issue in the pending appeals (including the definition of “sex discrimination”) so that OCR would be able to enforce the remaining provisions of the Final Rule in the affected states while the appeals worked their way through the court system.
In its August 16 ruling, the U.S. Supreme Court denied the Department of Education’s motions. In its decision, the Supreme Court reasoned that the Final Rule’s definition of “sex discrimination,” which includes discrimination based on sexual orientation and gender identity, is too intertwined with the other provisions of the Final Rule to be severable from the remaining provisions. Accordingly, OCR remains enjoined from enforcing the entirety of the Final Rule in the Fifth and Sixth Circuits, pending resolution of the appeals in those courts. While this ruling does not change schools’ Title IX obligations for now, the Sixth Circuit Court of Appeals has expedited its case and scheduled oral argument for October. Accordingly, we can expect to see a final decision out of the Sixth Circuit relatively soon.
Meanwhile, on August 28, 2024, the organization Moms for Liberty filed notice with the U.S. District Court for the District of Kansas of a second supplemental list of schools attended by members or children of members of Moms for Liberty, Young America’s Foundation, and Female Athletes United. You may recall that the Kansas district court entered an injunction order on July 2, 2024, that enjoins OCR from enforcing the 2024 Final Rule at many schools nationwide, including in Illinois (you can read our alert on the Kansas district court injunction here. This latest filing from Moms for Liberty adds new schools to this growing list, including several K-12 and higher education institutions in Illinois.
Because litigation on Title IX issues across the country remains fluid and the impact of these court orders varies across states, schools, and school districts, schools should continue consulting with their legal counsel regarding the impact of any such litigation on your legal obligations under Title IX. We will continue to closely monitor any activity and provide updates on the Title IX litigation landscape.
