Court Ruling Effectively Makes 2024 Title IX Regulations Unenforceable Throughout the Country
| | Title IX, Title IX : News
The Biden Administration’s “Final Rule” on Title IX has essentially been vacated nationwide by a recent court decision, leaving the status of Title IX issues uncertain in many places around the country. The regulatory changes–which took most of the Administration’s four-year term to develop and implement—were subject to preliminary injunctions in many jurisdictions soon after they were released and before they were scheduled to take effect last August. Now, a federal court has determined that because of three fatal flaws, “the entire Final Rule and corresponding regulations are invalid and must be set aside.”
To determine what this means for future Title IX cases and those currently in progress, the court’s reasoning and likely effects nationwide must be examined as we prepare for a new presidential administration.
Overview of Tennessee vs. Cardona – January 9, 2025
In June, the U.S. District Court for the Eastern District of Kentucky granted a preliminary injunction and stay of the newly released 2024 Title IX regulations, which the U.S. Department of Education generally refers to as the “Final Rule.” Courts around the country granted similar requests, some of which applied to states within their jurisdiction and others to specific schools represented by plaintiffs nationwide.
This prevented the new regulations from taking effect in some areas but not others. Moreover, even in the 24 states where the Final Rule was not subject to a preliminary injunction, certain private schools were subject to an injunction order, so the new rules could not be enforced at those institutions.
Fast forward several months. After considering in greater detail the arguments of the Department of Education and the states that objected to the implementation of the new regulations, Judge Danny C. Reeves, Chief Judge of the U.S. District Court for the Eastern District of Kentucky, issued an opinion on January 9 granting the motions for summary judgment filed by the plaintiff states and the Christian Educators Association, who had joined as intervenors. The court declared that the 2024 regulations exceeded the authority granted to the Department of Education by Title IX and that the rules violated the U.S. Constitution. In addition, the court also held that the rules represented “arbitrary and capricious agency action.”
Instead of making the temporary injunction permanent, as many expected, the court determined that the most appropriate remedy was a vacatur order, which would have vacated the Final Rule and essentially taken it “off the books.”
Understanding Vacatur
Judge Reeves cited an earlier unrelated case to explain that vacatur is the “normal remedy” when a court determines that the action of an administrative agency is unlawful. He cited another case where the 6th Circuit ruled that the severity of the agency’s error determines whether or not vacatur is appropriate. He then concluded that because the Final Rule is “unlawful on numerous fronts,” the errors justified a vacatur of the 2024 Final Rule, and the vacatur would “cause a return to the status quo.”
At one point, the judge explained that vacatur prevents the rule from being applied to those who would otherwise be subject to it. However, his statement in response to the request for declaratory relief indicates that the vacatur may not necessarily apply to everyone but only to the plaintiff’s party to this proceeding.
Declaratory Relief
In this lawsuit, the states and school organizations asked the court for declaratory relief, essentially asking the court to affirm four statements expressing their opinions and interpretations of the situation. Judge Reeves noted that their statements were “substantially consistent” with the court’s opinion, so the request for declaratory relief would be granted. However, he changed one of the four statements.
He accepted the following assertions:
- The Final Rule is unlawful because Title IX’s prohibition on “sex” discrimination does not include the bases or conduct covered by §106.02’s hostile-environment harassment definition, § 106.10, or § 106.31(a)’s regulation of sex-segregated facilities and programs
- The Final Rule is unlawful because it violates the Spending Clause and the First Amendment
- The Final Rule is unlawful because it is arbitrary and capricious
In the fourth statement, the plaintiffs asked the court to affirm that the plaintiff states and their political subdivisions and recipient schools were “entitled to funding irrespective of compliance with the Rule.” Noting that it was possible to violate Title IX in ways that were not related to the 2024 rules, Judge Reeves issued a different declaratory statement, affirming that “Plaintiff States, their political subdivisions, and their recipient schools need not comply with the Rule to receive federal funding.”
Why the Court Believes the Agency Exceeded Its Statutory Authority
Judge Reeves took issue with the Department of Education’s interpretation of the term “on the basis of sex” to include gender identity. He noted that nothing in the text or “statutory design” of Title IX suggests that “discrimination based on sex” should be interpreted in any way other than it has been in the past, paraphrasing Title IX to mean that “ recipients of federal funds under Title IX may not treat a person worse than another similarly-situated individual on the basis of the person’s sex, i.e., male or female.” He stated that interpreting “on the basis of sex” to encompass “gender identity” has the effect of turning “Title IX on its head.”
The Court rejected the argument put forth by the Department of Education that their interpretation of “based on sex” was “not contrary” to the provisions of Title IX. Judge Reeves stated the opinion that it was the court’s job not merely to identify a permissible meaning of the statute but to find the “’ single, best meaning’” of the statute.
Why the Court Found the Regulations to Be Unconstitutional
Judge Reeves discussed several “constitutional infirmities” found in the 2024 Title IX rules. To begin with, he found that the new definitions of sex discrimination and sex-based harassment effectively required institutions and their employees to use names and pronouns that students associate with their gender identity even when this conflicts with the institution’s or employee’s beliefs and that this violates the First Amendment right to free speech. “The First Amendment,” Judge Reeves noted, “does not . . . compel affirmance of a belief with which the speaker disagrees.”
The court also held that the Final Rule violated the U.S. Constitution because it was “vague and overbroad.” Specifically, the new definition of actionable harassment was considered to be “so vague that recipients of Title IX funds have no way of predicting what conduct will violate the law.” Judge Reeves noted that the U.S. Supreme Court had previously ruled that an individual could bring a private cause of action for harassment under Title IX only when the harassment was “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” But the 2024 rules, he observed, introduced a subjective component; they determined harassment to be actionable if it was severe or pervasive instead of requiring it to be severe and pervasive, and the rules lowered the standard for a Title IX violation to situations where the harassment did not completely bar access to educational opportunity but merely limited it.
Finally, the 2024 Final Rule was held to be unconstitutional because the regulations violated the Spending Clause. The U.S. Supreme Court has set four requirements federal legislation must meet in order to put conditions on federal funding awarded to the states. One requirement is that the imposed conditions cannot compel unconstitutional action. In addition to violating that requirement, Judge Reeves noted that the 2024 Title IX rules also violate the requirement that conditions must be “unambiguous” to be enforceable and that Congress must provide clear notice of obligations. He observed without a “clear statement from Congress,” the regulations cannot require schools to prohibit discrimination on the basis of gender identity as a condition of receiving federal funding.
How the 2024 Regulations Can Be Vacated as “Arbitrary and Capricious”
In his June opinion, Judge Reeve explained that federal courts have an obligation to set aside actions of an Executive branch agency if those actions are determined to be either arbitrary or capricious in order to maintain the balance of powers between the branches of government and hold the Executive branch accountable.
Essentially, the court explained that when a federal agency does not provide a “reasoned explanation” for changing its opinion on an issue, then the change can be set aside as arbitrary and capricious. After reviewing the Department of Education’s reasoning for expanding the definition of “sex” to encompass sexual orientation and gender identity, which relied in large measure on the 2020 Title VII Supreme Court case Bostock v. Clayton County, Judge Reeves concluded in June that it was “arbitrary” for Department of Education to rely on this decision because it dealt with a different “text, structure, purpose, and history.”
In his new opinion, Judge Reeves reiterates this reason for finding the Rules to be arbitrary and capricious. He also asserts that the new regulations create “glaring inconsistencies” within Title IX, noting that Congress allowed separate facilities for the sexes in certain situations, such as social fraternities or living facilities, despite any harm this might cause to individuals prevented from accessing these facilities in a manner consistent with their gender identity. “It seems clear,” he concludes, “that Title IX does not encompass the issue of gender identity at all.”
What Happens Now?
Traditionally, a court’s ruling is only binding for the jurisdictions specifically covered by that court. But in recent years, courts have issued nationwide injunctions that extend well beyond their jurisdictional boundaries.
Thus far, the reactions of Title IX professionals to this decision from the Eastern District of Kentucky indicate that no one expects to see the 2024 Title IX rules enforced anywhere from now on, which would mean that the 2020 rules would be the ones to follow. But, the Court did not officially state that it was vacating the 2024 rules nationwide. Even if it had, the decision could certainly be appealed, although any appeals filed by an executive agency would probably be dropped when the administration changes.
The ruling creates uncertainty for students, faculty, and staff in schools where the new rules legally took effect. What happens in cases filed between August 1, 2024, and January 9, 2025? What set of regulations should govern the proceedings? Any school decisions and perhaps even court rulings issued during that time could be subject to appeal. Cases that are still in progress could also be appealed. Regardless of whether a school changes procedures to investigate and adjudicate under the former 2020 rules or continues under the 2024 rules, an experienced Title IX attorney may be able to argue that a complainant or respondent’s rights have been violated in one way or another.
On the one hand, the 2024 rules did take effect for most schools in the 24 states that were not subject to an injunction on August 1 and remain in effect until at least January 9. On the other hand, the principle of vacatur acts as if a rule never existed. How can anyone enforce a rule that doesn’t exist? If the 2024 Final Rule was invalid from day one, then it can be argued that it was never capable of legally being enforced.
The uncertainty creates an administrative nightmare for institutions but potentially opens up some opportunities for aggrieved students and employees.
Find Out What this Title IX Ruling Could Mean for You
At Nesenoff & Miltenberg, protecting Title IX rights is a cornerstone of our practice, so we understand Title IX issues in a way few law firms can match. Regardless of regulatory and judicial developments, we know how to leverage these changes to help our clients achieve justice when their rights under Title IX have been abused.
If you have been accused of a Title IX violation on campus or your institution has not honored your rights under Title IX, now is the time to talk to a knowledgeable attorney about the best way to secure your rights and your future. Schedule a confidential consultation with our team today.