The Court’s decision leaves in place injunctions barring ED from enforcing the new regulations in over 20 states and against nearly 700 institutions of higher education.
Takeaways
- The Education Department (ED) released new Title IX regulations earlier this year that, among other things, expanded the definition of sex discrimination to include discrimination on the basis of gender identity.
- Multiple plaintiffs challenged those parts of the rule, and district courts issued preliminary injunctions barring ED from enforcing the 2024 Regulations.
- On August 16, 2024, the Supreme Court rejected ED’s application for a partial stay of the injunctions that would have allowed other parts of the 2024 Regulations to go into effect, holding that the provisions relating to gender identity “are intertwined with and affect other provisions of the rule.”
Title IX of the Education Amendments of 1972 provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
On April 19, 2024, the Biden administration released the 2024 Regulations with an effective date of August 1, 2024. As described in our prior alert, the 2024 Regulations expand the definition of sex-based harassment to include sexual harassment and harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, and sexual orientation, in addition to gender identity. 36 C.F.R. §§ 106.2, 106.10. They also expand the definition of hostile environment harassment to include conduct that is offensive and severe or pervasive, as opposed to only conduct that is severe, pervasive and offensive in the 2020 Regulations. 34 C.F.R. § 106.2. The 2024 Regulations require certain grievance procedures for Title IX complaints, and some notable changes from the 2020 Regulations include: a live hearing and cross-examination are not required, the single investigator model is permissible, and schools must generally use the preponderance of the evidence standard. 34 C.F.R. §§ 106.45, 106.46. The 2024 Regulations also include provisions addressing off-campus activity; retaliation and peer retaliation; employee reporting, training and response obligations; and specific protected characteristics, including pregnancy and parental status. 34 C.F.R. §§ 106.2, 106.11, 106.71, 106.44, 106.8, 106.40.
Plaintiffs Challenge the 2024 Regulations
Several states, individuals and organizations quickly filed lawsuits challenging the 2024 Regulations. As one district court observed, at least 10 similar complaints have been filed across the country.[1] Plaintiffs allege that the 2024 Regulations violate the Administrative Procedure Act, including its provisions that an agency cannot act contrary to law or the Constitution, cannot exceed its statutory authority, and cannot act in a manner that is arbitrary and capricious.
Specifically, plaintiffs challenge three sections of the 2024 Regulations (the “Challenged Provisions”). First, plaintiffs challenge ED’s expansion of the definition of sex discrimination to include discrimination based on gender identity. See 34 C.F.R. § 106.10. Second, Plaintiffs challenge a provision of the 2024 Regulations that states where Title IX allows different treatment on the basis of sex, such different treatment must not subject a person to more than de minimis harm, and that “[a]dopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person’s gender identity subjects a person to more than de minimis harm on the basis of sex.” 34 C.F.R. § 106.31(a)(2). Plaintiffs claim that this provision improperly prohibits schools from preventing transgender individuals from using sex-separated facilities that align with their gender identity. Third, plaintiffs challenge the 2024 Regulations’ definition of hostile-environment harassment as applied to discrimination based on gender identity, claiming that it could require students and faculty to refer to transgender individuals using pronouns that correspond to an individual’s gender identity. 34 C.F.R. § 106.2.
Patchwork Enforcement
To date, at least five district courts have granted a preliminary injunction, and the Eleventh Circuit has granted an administrative injunction blocking enforcement of the 2024 Regulations.[2] However, none of the injunctions apply nationwide. Rather, the injunctions currently in place prevent ED from enforcing the 2024 Regulations in at least 26 states. Additionally, Kansas v. U.S. Department of Education, No. 24-4041 (D. Kan.) involved three organizational plaintiffs: Moms for Liberty, Young America’s Foundation and Female Athletes United. The court in that case required these organizational plaintiffs to file a list of any schools attended by their members, or the minor children of their members, and that the injunction would apply at any such schools. The plaintiff organizations provided a list of over 400 K-12 schools and almost 700 institutions of higher education. As a result, ED also is prohibited from enforcing the 2024 Regulations at any of these schools.
ED has said that it will enforce the 2024 Regulations at any school where it is not enjoined from doing so and will enforce the 2020 Regulations at any school where it is enjoined.
The Supreme Court’s Denial of ED’s Request for a Partial Stay
The preliminary injunctions apply to the entirety of the 2024 Regulations, not only the Challenged Provisions. In its appeal to the Supreme Court, ED requested that the other provisions of the 2024 Regulations be allowed to go into effect while litigation continues as to the Challenged Provisions.
In a 5-4 decision issued on August 16, 2024, the Court rejected ED’s request.[3] The Court was unanimous that a stay of the Challenged Provisions was proper but split on whether the injunctions should apply to the remainder of the 2024 Regulations. Writing in dissent for herself and Justices Kagan, Gorsuch and Jackson, Justice Sotomayor argued that the injunctions were overly broad, and any alleged injuries flowed from the Challenged Provisions. Therefore, enforcement of the entirety of the 2024 Regulations went beyond what was necessary to redress plaintiffs’ alleged injuries.
The Court’s majority, however, agreed with the Fifth and Sixth Circuits that the “new definition of sex discrimination is intertwined with and affects many other provisions of the new rule.” The Court also noted “the difficulty that schools would face in determining how to apply the rule for a temporary period with some provisions in effect and some enjoined.” Accordingly, the Court concluded “the government has not provided this court a sufficient basis to disturb the lower courts’ interim conclusions that the three provisions found likely to be unlawful are intertwined with and affect other provisions of the rule.”
As a result, ED is barred from enforcing any portion of the 2024 Regulations with respect to those jurisdictions and schools affected by the injunctions and will instead enforce the 2020 Regulations. Schools may nonetheless choose to adopt policies that comply with the 2024 Regulations provided those policies do not conflict with the 2020 Regulations or state laws that might otherwise have been preempted by the 2024 Regulations.
[1] Alabama v. Cardona, No. 24-533 (N.D. Ala.); Arkansas v. U.S. Dep’t of Educ., No. 24-636 (E.D. Mo.); Carroll Indep. Sch. Dist. v. Dep’t of Educ., No. 24-461 (N.D. Tex.); Kansas v. U.S. Dep’t of Educ., No. 24-4041 (D. Kan.); Louisiana v. U.S. Dep’t of Educ., No. 24-563 (W.D. La.); Rapides Parish Sch. Bd. v. U.S. Dep’t of Educ., No. 24-567 (W.D. La.) (consolidated with Louisiana, No. 24-563); Oklahoma State Dep’t of Educ. v. United States, No. 24-459 (W.D. Okla.); Oklahoma v. Cardona, No. 24-461 (W.D. Okla.); Tennessee v. Cardona, No. 24-72 (E.D. Ky.); Texas v. Cardona, No. 24-86 (N.D. Tex.).
[2] Louisiana v. U.S. Dep’t of Educ., 2024 WL 2978786 (W.D. La. June 13, 2024), appeal docketed, No. 24-30399 (5th Cir. June 25, 2024); Tennessee v. Cardona, 2024 WL 3019146 (E.D. Ky. June 17, 2024), appeal docketed, No. 24-5588 (6th Cir. June 26, 2024); Kansas v. U.S. Dep’t of Educ., 2024 WL 3273285, at *22 (D. Kan. July 2, 2024), appeal docketed, No. 24-3097 (10th Cir. July 11, 2024); Texas v. United States, No. 2:24-CV-86-Z, 2024 WL 3405342 (N.D. Tex. July 11, 2024); Carroll Indep. Sch. Dist. v. U.S. Dep’t of Educ., 2024 WL 3381901 (N.D. Tex. July 11, 2024); Arkansas v. U.S. Dep’t. of Educ., 2024 WL 3518588 (E.D. Mo. July 24, 2024).
[3] Dep’t of Educ. v. Louisiana, 603 U.S. --- (2024).
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