This school year is off to a busy start as administrators wrestle with implementation of the new 2024 Title IX regulations. Schools are busy conducting training, making important decisions about policy, and navigating the legal challenges to the new regulations and their impact on schools.
Here are the important updates on Title IX over the last month.
Latest Filings Add New Schools to the Kansas Injunction
Since our last alert, the list of schools in Pennsylvania impacted by the preliminary injunction issued by the U.S. District Court in Kansas has expanded through supplemental lists filed by Moms for Liberty, Young America’s Foundation and Female Athletes United on July 31, 2024, and August 28, 2024.
U.S. Supreme Court Weighs In
The U.S. Supreme Court also weighed in on two pending cases in federal courts in Louisiana and Kentucky. This ruling did not directly impact the Kansas preliminary injunction, but it provides insight into how the high court may view the expanded definition of “on the basis of sex” in a future appeal.
In its emergency appeal to the Supreme Court, the Department of Education (DOE) asked the justices to allow some of the 2024 Title IX regulations to be put on hold in two cases filed in federal courts in Louisiana and Kentucky. Specifically, DOE sought to limit the scope of the preliminary injunctions to those parts of the new regulations that expanded the definition of sex to include gender identity and sexual orientation, leaving in place the majority of the 2024 Title IX regulations. The Supreme Court denied this request.
Notably, the Court’s decision stated that all members of the Court thought that the plaintiffs were entitled to preliminary injunctions “as to three provisions of the rule, including the central provision that newly defines sex discrimination to include discrimination on the basis of sexual orientation and gender identity.” A plaintiff seeking a preliminary injunction must prove, among other factors, that they are likely to prevail on the merits of their claim. Therefore, it appears that all nine justices thought that the states suing in the cases filed in Louisiana and Tennessee are likely to prevail on their claim that the Department of Education did not have the authority to expand the definition of “on the basis of sex” to include gender identity and sexual orientation.
So, What Is Going On in the Kansas Case?
The Supreme Court emergency appeal did not include the Kansas case, and the Kansas case continues to move forward. In addition to the two supplemental lists filed by Moms for Liberty, Young America’s Foundation, and Female Athletes United, the plaintiffs have filed a joint motion for summary judgment asking the Kansas court to permanently prohibit DOE from enforcing the 2024 Title IX regulations. The DOE defendants must respond by September 26, 2024. All of the parties’ filings should be completed as of October 24, 2024, which means that if the court grants summary judgment, a final ruling in the case could come as early as the end of next month.
More Pennsylvania schools have been added to the Kansas preliminary injunction, and developments in other cases have been in the news. More questions have also arisen about how school districts should proceed, particularly when some, but not all, of their schools appear on the list. What does all of this mean for Pennsylvania school districts?
What Must School Districts Do in the Interim?
All Pennsylvania school districts must continue to use the 2020 Title IX regulations for Title IX complaints when the alleged conduct occurred before August 1, 2024. Further, all school districts must continue to abide by the Pennsylvania Human Relations Act, which also prohibits discrimination on the basis of sex. The Pennsylvania Human Relations Commission (PHRC) issued regulations that took effect in February 2023 defining “sex” to include “pregnancy, sex assigned at birth, gender, including a person’s gender identity or gender expression, affectional or sexual orientation, including heterosexuality, homosexuality, bisexuality and asexuality, differences of sex development, variations of sex characteristics or other intersex characteristics.”
The PHRC recently issued a press release reaffirming its commitment to uphold the Pennsylvania Human Relations Act’s sex discrimination prohibitions and reminding school districts of their obligations under state law.
Therefore, to comply with state law, all Pennsylvania school districts must continue to prohibit and eliminate discrimination on the basis of gender identity and sexual orientation.
The 2024 Title IX regulations require all employees to be trained on their responsibilities under Title IX at the time of hire and annually thereafter. The 2024 Regulations also require all members of the Title IX team to receive training for their specific roles. This includes the Title IX coordinators, investigators, decisionmakers and informal resolution facilitators and others responsible for implementing Title IX at your school.
The DOE Office for Civil Rights released new Title IX resources for K-12 schools that can be found on OCR’s website here.
What About School Districts Unaffected by the Kansas Preliminary Injunction?
DOE has communicated that it will enforce the 2024 Title IX regulations in all schools not affected by the Kansas preliminary injunction. School districts should consult their solicitors to determine how to comply with the new regulations.
Moms for Liberty, Young America’s Foundation, and Female Athletes United may supplement the list of affected schools at any time, so school districts without any schools on the list now may find one or more schools added on a supplemental list and should continue to monitor for any future updates.
What About School Districts With Schools on the Kansas List?
The Kansas preliminary injunction is school-based, not school district-based, so the DOE is prohibited from enforcing the 2024 Title IX regulations in impacted schools, not in entire school districts. Given the complex legal landscape and uncertain future of the 2024 Title IX regulations, coupled with schools’ responsibilities to adhere to the Pennsylvania Human Relations Act, school districts should consult their solicitors for guidance on how to navigate this patchwork of legal requirements.
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