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Update for ATIXA Community on Recent Title IX Regulations Injunctions (Revised 7/16/24)

June 20, 2024 (Revised July 16, 2024)

An ATIXA Tip of the Week by Brett A. Sokolow, J.D. 

As of mid-July, five federal judges have granted preliminary 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 15 impacted states, specifically: ID, IN, KY, LA, MS, MT, OH, TN, VA, WV, TX, KS, AK, WY, and UT. As a result, schools (K-12 and HE, public and private) in the 15 affected states will not be required to comply with the 2024 Regs as the enforcement deadline of August 1, 2024, arrives.

Additionally, the Kansas injunction extends to not just KS, AK, UT, and WY, but to all schools in all states where there are school affiliations with Young America’s Foundation or Female Athletes United, as well as any school attended by a minor child of a member of Moms for Liberty. On July 16, these organizations filed lists with the court (that are yet to be finalized and can be supplemented) that extend to 300 K-12 schools and nearly 800 colleges across every state. Those lists can be found here.

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, except for one Texas suit that resulted in the partial enjoining of specific sections of the 2024 Regs.[1]

In the coming weeks, other courts will address the two remaining lawsuits against the 2024 Regs, meaning that the list of 15 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, though that likelihood seems less now that Texas and Kansas did not do so. 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, and has already requested stays of the injunction from several courts (those requests have been rejected). 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 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 fifteen states (and any schools on the Kansas list) will thus continue to train and operate under them as if nothing has changed from the last four years. It looks like we will end up with a compliance patchwork, where some states implement the 2024 Regs in August, and others 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?

Given the complexity of the injunctions and the interplay with state laws and directives, we recommend that schools, colleges, and universities consult with their legal counsel.

For those in states or locations 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.

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 will know where we stand, and know 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. The 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.

Your senior leaders also should know that the work doesn’t stop while we see how this plays out. We don’t have a crystal ball, 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. Keep a watch on our Regs site in the weeks and months ahead!

Key Takeaways

We expect more injunctions to follow from suits involving other states and will share our thoughts as the legal wrangling unfolds. In short, here are some takeaways:

  • The injunctions themselves do not directly tell a school what they can or cannot do; however, since ED cannot enforce the regulations in the named states and schools, the affected public and private schools and colleges will not need to comply with the 2024 Regulations as of August 1, 2024.
  • At some point in the future, the injunctions may be lifted in whole or in part as part of an appeal or final result of the litigation. This would mean that ED would be free to resume (or begin) enforcement of the 2024 Regs, and at that point, schools will need to be ready to comply.
  • In the meantime, schools covered by the injunction will need to continue to ensure compliance with the 2020 Regulations (which is not a complete surprise, given that the 2024 Regulations aren’t retroactive), and some level of 2020 compliance alongside 2024 would be expected even without injunctions.
  • Title IX offices need access to resources to be able to roll with all these changes, especially at the last minute. They need to be able to consult legal counsel, devise multiple sets of policies and procedures, and implement various training schemes. Expedited policy and procedure approval processes may be necessary. Uncertainty may bring confusion, but it shouldn’t lead to inaction.

[1] Although this injunction is a partial injunction, it currently is only applicable to one school district in Texas, and Texas, as a whole, is already included in a complete preliminary injunction.