Last week and early this week, two federal judges granted injunctions to halt enforcement of the 2024 Title IX Final Rule (“2024 Regs”), in its entirety. An injunction is a court order requiring an individual or entity to either perform or stop performing a specific action. In this case, the Department of Education (ED) is now temporarily or preliminarily prohibited from enforcing the 2024 Regs in 10 impacted states, specifically: ID, IN, KY, LA, MS, MT, OH, TN, VA, WV. As a result, schools (K-12 and HE, public and private) in the 10 affected states will not be required to comply with the 2024 Regs as the enforcement deadline of August 1, 2024 arrives. We expect more injunctions will soon follow from other suits involving other states and want to provide you with our thoughts as the legal wrangling unfolds.
What Are the Implications of These Injunctions?
These are temporary injunctions. These cases will now head to trial in federal court in the coming months, and each judge will decide whether to make the injunctions permanent. Granting the injunctions already shows the judges are inclined to do just that. The courts could have taken a restrained approach and limited their injunctions to only certain parts of the 2024 Regs. Instead, the judges applied their orders to the 2024 Regs in their entirety, covering every provision and every page.
In the coming weeks, other courts will address the five other lawsuits against the 2024 Regs, meaning that the list of 10 states above could expand as other judges follow suit. Based on the plaintiffs in those lawsuits, it is possible that up to 26 states could win temporary, then permanent, injunctions. It is also possible that any of the judges in these suits could implement a nationwide injunction impacting every state. Further, it is unlikely that any of these cases could go to trial before August 1, meaning that in every state where there is an injunction, the 2020 Regs will continue to apply unless an appeals court quickly steps in to set the injunctions aside. This is unlikely to happen.
Despite the uncertainty with the courts, institutions may need to comply with the 2024 Regs at a moment’s notice, meaning that you need to give some careful thought to policy revision/preparation and training. You may want to have something on the shelf but at the ready, depending on which way things go. If a court lifts an injunction or declines to make one permanent, compliance with the 2024 Regs will be expected the next day. To make things more complicated, you may also be in a state that does not want you to (or will not let you) prepare for the 2024 Regs. In those circumstances, you’ll just need to let the legal maneuvering play out.
How could this play out? Well, it’s likely that ED will immediately appeal these injunctions. Then, we will have circuit courts of appeal ruling on the temporary injunctions, and they may either uphold them, limit them, or vacate them. Next, the states or ED could appeal one or more of those outcomes to the Supreme Court. The same thing could happen once the cases go to trial at the district court level, with subsequent appeals to the circuits, and then from there to the Supreme Court. It’s possible these cases could ultimately be decided by the Supreme Court, but it’s more likely the Supreme Court would accept the case in the event of a split amongst the appeal courts. We’re still far from that, and we’re not even sure that a circuit split is likely. Perhaps if a court upholds the 2024 Regs, and other courts do not, that might prompt the Supreme Court to take the case. We think that a ruling by the Supreme Court (if there is one at all) could be at least 18-24 months away, so no final resolution is coming any time soon.
The effect of the two injunctions we’ve seen thus far would be to leave the 2020 Regs in place at least until the lawsuits reach their resolutions. As a result, schools and colleges in those states would continue to use the 2020 Regs that we’ve worked with for the last four years. We know them. We understand them. They’re fair. They’re workable, even if not ideal. Schools in those ten states will thus continue to train and operate under them as if nothing has changed from the last four years. We may also end up with a compliance patchwork, where some states implement the 2024 Regs in August, and other states do not. ATIXA will continue to offer training certifications on both 2020 and 2024 sets of regs and provide the field with model policy and procedure templates for each. We will keep members updated on significant developments on our regs site.
What Should You Do?
For those in states covered by the injunctions, they will disrupt any plans you may have had to move away from live hearings, or to a model in which your investigator or coordinator is your decision-maker. That can’t happen now, at least in the short term, and maybe not ever.
Please consult your legal counsel. ATIXA’s position is that sexual orientation and gender identity have long been protected by Title IX to the extent that such forms of discrimination typically rely on sex stereotypes or characteristics. In that sense, the 2024 Regs were not so much an expansion of Title IX as a clarification of its scope. However, this interpretation may continue to conflict with some state laws, so you really need to be engaged with your attorneys on the implications, risks, and go-forward plans. Complying with state law could still get you sued under Title IX whether or not the 2024 Regs go into effect. If you cannot prepare to comply with the 2024 Regs in advance, you still may benefit from having a plan for how you will implement training, policies, and procedures as quickly as possible, in the event you need to do so.
How Should You Communicate About This with Your Community?
We suggest transparency. Be clear that you’re preparing to comply with whatever regs are in place, but that we are all at the mercy of the courts on this, and it may be some time (even years) before all of this comes out in the wash, we know where we stand, and what set of rules we need to implement. Once we do, we’ll write policies and procedures, accordingly, and train everyone as necessary to implement them.
You can also choose to be clear that schools are between a rock and a hard place with respect to ED and the courts and caught between state and federal clashes. Politicization of Title IX means that schools and campuses may experience some variability and a lack of clarity as winds shift. That’s not ideal, but it is what it is, and we might as well prepare our communities for it.
With respect to briefing your senior leaders, cabinet, and trustees/board, they need to understand the political forces that are at play, the way that the process is creating a see-saw effect, and the lack of clarity that results. You’ll be helping to ensure your school is compliant, but compliance requirements are shifting, lack clarity, and may be in limbo for a while. Boards and cabinets need to understand that lawsuits, as well as federal and state clashes, are inevitable, but that each school needs to be thoughtful and judicious about the liabilities it accepts and liabilities to avoid. For example, you may accede to state demands only to face student ire and activism, or you may support student activism only to see your state clamp down.
We don’t have a crystal ball, and so we can’t predict how this will resolve. We know that the litigation will take time, that not every decision may align with other decisions, and that uncertainty rules the day. But, for now, all schools will have some regulations in place, with which compliance is expected, and you should expect that ED will enforce whatever those rules are, unless and until directed otherwise by a federal court.
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