Injunction of 2024 Title IX Regulations Impacts Schools Nationwide

A federal district court in Kansas enjoined the U.S. Department of Education's (Department) enforcement of the 2024 Title IX regulations in a unique manner that impacts educational institutions nationwide. The decision impacts not only the specific states subject to the jurisdiction of this case (i.e., Alaska, Kansas, Utah and Wyoming) but also specific schools attended by members of the plaintiff groups or their children anywhere in the country.

The unique aspect of the Kansas case arises because, unlike earlier Title IX injunction cases brought by state attorneys general, the plaintiffs in the Kansas case include three voluntary membership associations (Plaintiff Associations). The Kansas court's decision enjoined enforcement of the 2024 regulations against any school attended by a member of those Plaintiff Associations or their children, even if the school is located in a state in which the 2024 regulations otherwise have not been enjoined. As explained below, this ruling, if not overturned in a pending appeal, could affect the Department's ability to enforce the 2024 regulations against more than 700 colleges and universities across the U.S.

This Holland & Knight alert provides relevant background, describes the Kansas case, places it in context and discusses its potential ramifications.

Background

The Department issued the unofficial version of its long-awaited revisions to its 2020 Title IX regulations on April 19, 2024; the official version was published on April 29, 2024. Among many changes, the 2024 regulations emphasized that discrimination on the basis of sex includes discrimination on the basis of sexual orientation and gender identity and provided schools with more procedural flexibility by, for example, eliminating the requirement that colleges and universities must provide a live hearing with cross examination by advisors in campus Title IX cases. The Department emphasized that the 2024 regulations are effective prospectively starting Aug. 1, 2024.

Multiple state attorneys general filed lawsuits against the Department challenging the validity of the 2024 regulations and requesting preliminary injunctions that would preclude the Department from enforcing the regulations in the states that they represented. To date, federal courts in Louisiana, Kentucky and Texas have granted such preliminary injunction requests, which, when combined with the state-level injunction granted by the Kansas court, means that the Department is currently enjoined from enforcing the 2024 regulations at some or all colleges and universities in 15 states: Alaska, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming. In granting the requested injunctions, the four rulings to date focused primarily on provisions related to gender identity and how those provisions might affect facilities (e.g., bathrooms, locker rooms) and athletics-related operations at K-12 and postsecondary schools, though some courts also criticized a perceived weakening of procedural protections, definitions of sexual harassment and other provisions. At least two other such cases are currently pending.

To date, courts have granted all of the preliminary injunction requests from state attorneys general and have rejected the Department's arguments that objectionable provisions can be severed and the regulations enforced without them. The most recent decisions, including the Kansas decision, drew further support from the U.S. Supreme Court's June 28, 2024, ruling in Loper Bright Enterprises v. Raimundo, which overturned a decades-long tradition of federal court deference to executive agency regulations. None of these decisions granted so-called "nationwide injunctions," which would effectively end the Department's implementation of its new regulations. While the Kansas court did not issue a nationwide injunction, its decision will affect schools across the country.

The Kansas Case

The Kansas court reasoned that failing to issue an injunction that benefitted the individual members of the Plaintiff Associations, regardless of the state in which they attended school, would unfairly render their participation in the lawsuit "a legal nullity." As such, the impact of the Kansas decision has the potential to extend to many states, which some may see as having the effect of a near or actual nationwide injunction if the list of schools grows. The Plaintiff Associations filed with the court on July 15, 2024, a list of more than 700 colleges and universities purportedly attended by students who were, as of that date, members of the Plaintiff Associations. Currently, the Department and the plaintiffs are arguing over whether the Plaintiff Associations should be allowed to add new schools to that list as new members join their organizations. Inside Higher Ed reports – in an article that includes a searchable version of the list, and the Department argues – that the Plaintiff Associations are citing the court's decision in online new membership marketing pitches. The court has yet to decide that point definitively. The Department has appealed the Kansas decision.

Implications

For those colleges and universities that are expressly covered by the Kansas injunction or the earlier injunctions from other courts, the implications are relatively clear: the Department cannot require such institutions to comply with the 2024 regulations. For those colleges and universities included on the list submitted in the Kansas case, it currently appears that so long as the Kansas injunction remains in place and students from the Plaintiff Associations remain enrolled at those institutions, the Department is prevented from requiring those institutions to comply with the 2024 regulations.

This could be good news for those institutions that were not keen on the new regulations or the substantial policy development, training and other compliance burdens they impose. Most have spent the last three months revising their policies and training programs at considerable expense and will not see this as a positive development. For others, the procedural flexibility and other features of the 2024 regulations were seen as an improvement over the 2020 regulations, so they were on balance in favor of the 2024 regulations. Given all this, the biggest question is: Should institutions on the list scrap or shelve their new policies and training programs and wait to see what develops next in the Kansas case and cases to come? This is a question that each institution will have to answer in conversation with their legal counsel, but some observations are offered below that should facilitate those conversations.

1. The Kansas injunction does not address the continued viability of the 2020 Title IX regulations. The 2024 regulations expressly amend various sections of the 2020 regulations, and absent a nationwide injunction, those amendments will take effect on Aug. 1, 2024. The result could be chaotic, with some institutions following the 2024 regulations and others retaining policies drafted to comply with the 2020 regulations, and schools may not receive definitive enforcement guidance from the Department. Compounding the problem, the list of schools affected by the Kansas injunction may be subject to change as students join or withdraw from the Plaintiff Associations or the schools, depending on how the Kansas court rules on that issue.
2. In terms of potential civil liability issues, the Supreme Court held in Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 291-92 (1998) that the administrative requirements imposed by Title IX regulations, such as the requirements to adopt and publish grievance procedures and issue nondiscrimination statements, may be enforceable through the Department's administrative procedures but not through a private right of action.
3. The Kansas court emphasized that "nothing in [its] order limits the ability of any school to adopt or follow its own policies, or otherwise comply with applicable state or local laws or rules regarding the subjects addressed herein. Rather, it simply prohibits [the Department] from demanding compliance with the [2024 regulations] by the schools affected by this order, or imposing any consequences for such schools' failure to comply with the [2024 regulations]." Accordingly, if an institution "on the list" decides to implement policies or practices that are not in conflict with any applicable Title IX regulation, including policies or practices that are in accordance with the 2024 regulations, that choice should not violate the Kansas injunction. However, it is not clear what position the current or any future Department administration would take regarding such an approach.
4. Subject to points 1 and 2 above, those schools applying the 2024 regulations face the risk that a party could cite the Kansas decision in support of an argument that a listed school's Title IX process was flawed because 2020 regulation procedures were not provided (for example, the alleged "deprivation" of "live cross examination by my advisor").

The upcoming federal elections will no doubt add further complexity and uncertainty. Ultimately, institutions and their legal counsel will need to determine what path they choose to tread in this uncertain judicial and regulatory landscape.

If you have any questions about the issues summarized above, please reach out to the authors or another member of Holland & Knight's Education Team.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.