Quick Hits
- The U.S. District Court for the Eastern District of Kentucky vacated the U.S. Department of Education’s 2024 Title IX Final Rule, which had expanded the definition of sex-based harassment to include sexual orientation, gender identity, sex stereotypes, and pregnancy.
- The court found that the 2024 Title IX Final Rule violated the First Amendment and the Spending Clause of the United States Constitution, and it exceeded the U.S. Department of Education’s authority under Title IX of the Education Amendments of 1972, which traditionally prohibited only discrimination based on sex as male or female, not gender identity. The court also determined the rule was vague, overbroad, and arbitrary.
- The decision concluded that while the plaintiff states and their schools were not required to comply with the 2024 Title IX Final Rule to receive federal funding, they potentially “could violate Title IX in ways unrelated to the Final Rule, which might render them ineligible for federal funding.” The 2020 Title IX Rule remains in place for federal enforcement and investigations by the U.S. Department of Education.
Among other changes, the 2024 Title IX Final Rule expanded the definition of “sex-based harassment” to include harassment based on sex characteristics, sexual orientation, gender identity, sex stereotypes, and pregnancy.
It also changed when a response was required. The Final Rule had already been halted in twenty-six states, as numerous legal actions were filed to enjoin the U.S. Department of Education from enforcing the Final Rule.
The district court’s decision granted summary judgment to six states (the Commonwealth of Kentucky, the Commonwealth of Virginia, the State of Indiana, the State of Ohio, the State of Tennessee, and the State of West Virginia) and two intervenors, who were the plaintiffs, and it denied summary judgment to the defendants, Secretary of Education Miguel Cardona and the U.S. Department of Education.
Each side had moved for summary judgment. The decision rejected the Department of Education’s reliance on Bostock v. Clayton County, Georgia, 590 U.S. 644 (2020), a Supreme Court of the United States decision in which the Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of sexuality or gender identity. In its decision, the district court noted that Title VII has different language, goals, and defenses than Title IX and described inconsistencies the Final Rule created within Title IX, which allows sex-based separation in various circumstances. Notably, the new rules did not address transgender participation in sports.
The decision holds that the Final Rule and its corresponding regulations:
- violated the United States Constitution, specifically the First Amendment and the Spending Clause;
- exceeded the U.S. Department of Education’s statutory authority under Title IX, which prohibits discrimination based on sex as male or female, not gender identity;
- infringed on the free speech rights of teachers and others by requiring them to use names and pronouns associated with a student’s asserted gender identity or face harassment claims;
- were vague and overbroad and did not provide clear notice to the states of the conditions for receiving federal funds under Title IX; and
- were arbitrary and capricious under the Administrative Procedure Act.
The decision concluded that the U.S. Department of Education did not provide a reasoned explanation for departing from its long-standing interpretation of Title IX and that it failed to account for the “glaring inconsistencies” and consequences of the Final Rule.
The court vacated the entire Final Rule and its corresponding regulations, and declared that they were unenforceable nationwide. The decision also granted declaratory relief to the plaintiffs, stating that they did not have to comply with the Final Rule to receive federal funding. The decision modified the fourth request for declaratory relief, holding that “it goes too far to affirmatively conclude that the plaintiff-states ‘are entitled to funding irrespective of their compliance with the Rule.’” After noting that “the plaintiff-States potentially could violate Title IX in ways unrelated to the Final Rule, which might render them ineligible for federal funding,” the court stated that “a more accurate way to characterize this declaratory relief is that the Plaintiff States, their political subdivisions, and their recipient schools need not comply with the Rule to receive federal funding.”
The U.S. Department of Education has not yet commented on the decision. For purposes of federal enforcement and investigative actions by the U.S. Department of Education, the 2020 Title IX Rule is still in place.
Ogletree Deakins’ Higher Education Practice Group will continue to monitor developments and will provide updates on the Higher Education blog as additional information becomes available.
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