On Thursday, January 9, 2025, a Federal District Court in Kentucky struck down the Biden administration’s Title IX regulations in its ruling in Tennessee v. Cardona. The ruling, effective immediately, impacts educational institutions nationwide.
What Happened?
The Biden administration’s Title IX regulations went into effect on August 1, 2024 (the “2024 Rules”). As we reported in our prior Client Alert, the 2024 Rules rolled back some changes implemented during the first Trump administration on August 1, 2020 (the “2020 Rules”) and set forth other terms, including expanding the definition of sex discrimination protected under the law. Before the 2024 Rules took effect, several states challenged them on various grounds. And, while several other court decisions blocked the application of the rule, those decisions were not applicable nationwide.
In the January 9, 2025 opinion, the Eastern District Court of Kentucky struck down the 2024 Final Rules finding:
- the Department of Education exceeded its authority in issuing regulations under Title IX when the regulations considered discrimination on the “basis of sex” to include protected sex characteristics recognized by the U.S. Supreme Court in the Title VII context (Bostock v. Clayton County) – the Court found that Title IX did not permit a similar interpretation;
- the 2024 Rules violated the U.S. Constitution, including:
- the 2024 Rules’ definitions of sex discrimination and sex-based harassment and the de minimis, standard “offend” the First Amendment and will chill free speech;
- the 2024 Rules are vague and overbroad in that they do not adequately provide recipients of Title IX funds the ability to predict what conduct would violate the law;
- the 2024 Rules violate the Spending Clause of the United States Constitution because the conditions induce unconstitutional action (as noted above) and impose ambiguous conditions on the receipt of federal funds (prohibition of gender identity discrimination);
- the 2024 Rules are arbitrary and capricious because the Department did not provide a reasoned explanation for departing from its prior longstanding interpretation of Title IX, other than primarily relying upon Bostock, which the Court, again, ruled applied only to Title VII.
As for the remedy, the Court declined to sever the portions of the 2024 Rules it found unlawful (as requested by the Department) because “the three challenged provisions fatally taint the entire rule.” The Court noted that “the definition of discrimination on the basis of sex lies at the heart of Title IX and permeates virtually every provision of the law.” The Court also noted that “[w]hile not directly challenged in this proceeding, the Final Rule brings new requirements for handling grievances, training, recordkeeping, and processing complaints.” The Court decided it was not proper to “rewrite the regulations by excising the offending material, particularly when rulemaking is the exclusive duty of the Executive Branch.” Thus, the Court concluded “that the entire Final Rule and corresponding regulations are invalid and must be set aside.”
When is the Order Effective?
The Court’s order is effective immediately. The decision could be appealed; however, because the second Trump administration assumes office on January 20, 2025, it could withdraw any appeal filed in the final days of the Biden administration. The Trump administration previously announced its intention to eliminate the 2024 Rules once in office.
What Does the Court’s Decision Mean for Institutions?
The Court explained that its action “takes the unlawful agency action off the books.” Thus, institutions will need to comply with the 2020 Rules, including institutions that were not previously subject to an injunction and implemented new policies and procedures in line with the 2024 Rules.
If time and resources allow, it is a good opportunity to review what worked and what did not work when handling any complaints in recent years to make improvements to the policies and procedures implemented under the 2020 Rules.
Finally, institutions should re-train their staff who handle Title IX issues to ensure they are up to speed on the requirements under the 2020 Rules.
How Should Institutions Handle Ongoing Title IX Investigations?
Contrary to the Court’s announcement that its action “is not likely to have a disruptive effect,” the Court’s decision to vacate the 2024 Final Rules leaves many complicated questions unanswered about how institutions meet their Title IX obligations moving forward. For example, how do institutions proceed with any pending investigations? Unless the Department weighs in, the answer is likely determined based upon a case-by-case analysis considering factors, including:
- What is the status of the investigation?
- Are the parties students, employees, or both?
- Does the complaint allege conduct that is based on one of the party’s gender identity, sexual orientation, sex stereotypes, sex characteristics, or pregnancy or related conditions (as opposed to biological sex)?
- What standard of evidence did the institution use under the 2020 Rules?
- Would the Respondent be found not responsible under the 2020 Rules but responsible under the 2024 Rules given the new standard?
Regardless of the manner in which institutions proceed, it is critical they continue to abide by the principles of due process—meaning each party has adequate notice of the allegations and an opportunity to review and respond to those allegations and the evidence collected during the investigation.
If you have any questions or would like guidance concerning these and other issues arising from the Court’s decision, please reach out to your Michael Best attorney.