August 2, 2024

Title IX Litigation Tracker: Tensions Rise as Litigation Remains Active Between States and the Federal Government Over Title IX Regulations

John Borkowski, Noel Fisher, Aleksandra Rushing

Husch Blackwell LLP

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*[co-author: McKale Walker]

On April 19, 2024, the U.S. Department of Education (“Department”) released the long-awaited Final Rule to Title IX. Title IX of the Education Amendments of 1972 is a statute with corresponding regulations that protect people from being excluded, denied benefits, or subject to discrimination under any education program or activity “on the basis of sex.” These regulations apply to every school at the K-12 and postsecondary level that receives federal financial assistance.

Since their publication, the 2024 Title IX regulations have faced strong opposition by states and national advocacy organizations who argue that they violate the Administrative Procedures Act (“APA”) in that they are arbitrary and capricious and exceed agency authority, violate the First Amendment, and violate the Spending Clause. Twenty-six states and numerous private parties have filed or joined lawsuits seeking to block the implementation and enforcement of the Final Rule.

The litigation on the Title IX regulations is as follows:

Case	Key Plaintiffs Involved	Result	Next Steps
Louisiana v. U.S. Department of Education No. 3:24-CV-00563, U.S. District Court for the Western District of Louisiana	Louisiana, Mississippi, Montana, and Idaho	June 13, 2024: Preliminary injunction granted preventing the implementation and enforcement of the Final Rule in each of the four states. Motion by Department for partial stay of the preliminary injunction pending appeal was denied.	Department has appealed the preliminary injunction to the U.S. Court of Appeals for the Fifth Circuit (No. 24-30399). The Fifth Circuit denied the Department’s request to stay parts of the preliminary injunction. The Department requested emergency relief from the Supreme Court (No. 24A78) to stay the preliminary injunction pending appeal. That request is pending.
Tennessee v. Cardona No. 2:24-CV-00072 U.S. District Court for the Eastern District of Kentucky	Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia	June 17, 2024: Preliminary injunction granted preventing the implementation and enforcement of the Final Rule against these 6 states. Motion by Department to enjoin only the parts of the regulations being challenged in court was denied.	Department has appealed the preliminary injunction to the U.S. Court of Appeals for the Sixth Circuit (No. 24-5588). The Sixth Circuit denied the Department’s request to stay parts of the preliminary injunction pending the appeal but agreed to expedite the appeal. The Department requested emergency relief from the Supreme Court (No. 24A79) to stay the preliminary injunction pending appeal. That request is pending.
Kansas v. U.S. Department of Education No. 5:24-cv-04041 U.S. District Court for the District of Kansas	The states of Kansas, Alaska, Utah, and Wyoming; three Plaintiff Organizations (Young America’s Foundation, Female Athletes United, and Moms for Liberty)	July 2, 2024: Preliminary injunction granted preventing the Department from implementing or enforcing the Final Rule in these 4 states and any school attended by current or prospective members of Young America’s Foundation or Female Athletes United, or by the children of the members of Moms for Liberty.	YAF and FAU have filed lists of public and private K-12 and postsecondary schools in 42 states and the District of Columbia. Moms for Liberty filed a separate list of K-12 schools subject to the preliminary injunction. The Department filed its appeal to the U.S. Court of Appeals for the Tenth Circuit.
Texas v. United States of America No. 2:24-CV-00086 U.S. District Court for the Northern District of Texas	Texas	July 11, 2024: Preliminary injunction granted in part preventing the Department from implementing or enforcing the Final Rule against the plaintiffs (the State of Texas, and two professors at the University of Texas-Austin).
Alabama v. Cardona No. 7:24-cv-00533 U.S. District Court for the Northern District of Alabama	Alabama, Florida, Georgia, and South Carolina	April 29, 2024: Complaint filed. July 30, 2024: Motion for preliminary injunction denied. July 31, 2024: The U.S. Court of Appeals for the Eleventh Circuit granted the plaintiffs’ request for an administrative injunction, enjoining the enforcement of the regulations in the plaintiff states pending appeal of the preliminary injunction denial.	Briefing on the appeal of the preliminary injunction denial (No. 24-12444) is ordered to be complete by August 7, 2024. Enforcement of the regulations is enjoined by Eleventh Circuit in the plaintiff states pending resolution of the appeal.
Oklahoma v. Cardona No. 5:24-cv-00461 U.S. District Court for the Western District of Oklahoma	Oklahoma	May 6, 2024: Complaint filed. June 28, 2024: Motion for preliminary injunction filed by Oklahoma.
Arkansas v. U.S. Department of Education No. 4:24-CV-00636 U.S. District Court for the Eastern District of Missouri	Arkansas, Iowa, Missouri, Nebraska, North Dakota, and South Dakota	May 7, 2024: Complaint filed. July 24, 2024: Preliminary injunction granted preventing enforcement “against” the plaintiff states.

What does this mean for you?

Each injunction is unique in its scope and coverage. Generally, the Department cannot enforce the 2024 Title IX regulations against schools—including colleges and universities—located in states subject to a preliminary injunction or administrative injunction. As these injunctions may still be reversed or modified on appeal, schools located in these states should work with legal counsel to determine how the Final Rule and any injunction may impact their policies and procedures regarding reports and complaints of sex-based harassment and sex discrimination occurring after August 1, 2024.

Generally, schools located in states not subject to an injunction must be in compliance with the Final Rule by August 1, 2024. Each school across the country, however, should work with legal counsel to determine if they are named on the lists filed in Kansas v. Department of Education and, thus, are covered by the scope of the injunction preventing the enforcement of the Final Rule against members of the Plaintiff Organizations.

Last Updated: August 1, 2024.

*This blog post was thoughtfully prepared with assistance from Husch Blackwell summer associate McKale Walker.

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