The U.S. District Court for the Eastern District of Kentucky on January 9, 2025 issued a sweeping ruling vacating the 2024 Title IX Regulations that went into effect on August 1, 2024. The case, State of Tennessee v. Miguel Cardona, is one of numerous cases brought across the country challenging the 2024 Regulations. The Court ordered that the “Final Rule and Regulations” be vacated in their entirety because it determined that the 2024 Regulations exceeded the Department of Education’s authority under Title IX, violated the United States Constitution and are the result of arbitrary and capricious agency action.
The Court found issue with several provisions within the 2024 Regulations. First, the Court found that the 2024 Regulations improperly “clarified” that discrimination “on the basis of sex” under Title IX includes discrimination “on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” Second, the Court found that the portion of the Regulations that stated that “adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person’s gender identity subjects a person to more than de minimis harm on the basis of sex” was improper. Finally, the Court took umbrage with the change in the definition of sexual harassment from “[u]nwelcome conduct determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a person equal access” to education to including “[u]nwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.”
Instead of simply invalidating the provisions that the Court found to be improper, the Court held that the three challenged provisions “fatally taint the entire rule.” The Court thus held that the “entire Final Rule and corresponding regulations are invalid and must be set aside.” The Court then ordered both vacatur (i.e., the invalidation of) the entire Final Rule and Regulations and granted the Plaintiffs’ request for a permanent injunction declaring the Final Rule to be unlawful and stating that the “Plaintiff states, their political subdivisions, and their recipient schools need not comply with the Rule to receive federal funding.”
So, what does this mean? Although somewhat vague, it appears from the wording of the decision that the Court had effectuated the vacatur of the entire Final Rule and thus the 2024 Regulations in their entirety across the country. This would include striking the portions of the 2024 Regulations that not only address the issues of transgendered students, but also the other portions, including, but not limited to those portions addressing the new procedures for the investigation of sexual harassment complaints and the additional protections for pregnant students. The U.S. Department of Education (DOE) has not yet weighed in on whether they will be taking the position that this is a full vacatur of the Regulations or whether the DOE believes this only applies to the Plaintiff states in the case. It seems likely, however, that this is a complete invalidation of the Regulations across the entire country.
Assuming that this is a complete vacatur of the 2024 Regulations, what would that mean? Again, there is not an entirely clear answer. The likely answer is that if the 2024 Regulations are vacated, everything reverts back to the 2020 Regulations. This is the approach that the U.S. Department of Education took when addressing the temporary injunctions against the 2024 Regulations issued previously by this Court and several other courts around the country. It appears likely that this is the approach that the DOE will take here as well.
Other things that educational institutions need to think about: Does this vacatur have an effect on Title IX decisions that may have been issued under the 2024 Regulations? How should educational institutions address investigations that were started under the 2024 Regulation’s procedures and have not yet been completed? Finally, could this lead to challenges to Connecticut’s own provisions protecting transgender students? (especially in light of portions of this decision that suggest that requiring teachers to use the preferred pronouns of students may violate such teachers’ First Amendment rights)?
It is expected that more information will be provided by the DOE in the coming days. Until that time, please feel free to contact me or any of the attorneys in our School Law practice for guidance moving forward on this ever-evolving issue.
