Legal Matters: October 2024
In recent years, we have witnessed significant activity regarding Title IX. Over the past three presidential administrations (from Obama to Trump to Biden), Title IX guidance has been issued and rescinded (and re-issued), markedly different Title IX regulations have been released between administrations, and courts have released inconsistent rulings on the reach of Title IX. In this article, we provide an overview of the legal landscape related to Title IX, including historical, ongoing, and future issues for school leaders to consider.
A Brief Introduction to Title IX
Before introducing specific actions related to Title IX, we provide a brief introduction to the law. Enacted by Congress in 1972, Title IX states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The authority for enforcement of Title IX has been delegated to the U.S. Department of Education’s Office for Civil Rights (OCR). To fulfill this responsibility, OCR takes on multiple enforcement activities, including conducting complaint investigations, issuing guidance, and promulgating regulations that provide detail where the law is unclear. In this article, we will focus specifically on Title IX regulations.
Summary of Title IX Regulations
In May 2020, President Trump’s administration revised the Title IX regulations for the first time in over four decades. These regulatory changes created more robust investigatory procedures with more due process protections and changed the definition of sexual harassment to a higher standard. Advocates raised concerns that these changes discouraged the filing of sexual assault complaints (Grayer & Stracqualursi, 2020; The Leadership Conference on Civil and Human Rights, 2022).
Upon taking office, President Biden promised to roll back many of President Trump’s changes to Title IX. In April 2024, the new rules were finally released (U.S. Depart. of Educ., 2024). New Title IX regulations about transgender athletes had also been proposed, but the final version has been indefinitely delayed.
Several commentators have described the Biden 2024 Title IX regulations as a “rollback” to pre-2020; however, they’re much more of a “slide and pivot” (Rura, 2024). The 2024 regulations revise the definition of sexual harassment and the scope of the places and people protected under the rules. The 2024 rules state Title IX protects pregnant and parenting individuals and LGBTQIA+ individuals, which many legal experts already believed was sound legal analysis under the 2020 U.S. Supreme Court case Bostock v. Clayton County and several other federal circuit court rulings (Sokolow, 2024). In fact, schools in 17 states already had federal cases between 2017 and 2023 stating that Title IX protects LGBTQIA+ students; the Supreme Court has yet to take one of these appeals. (Whitaker v. Kenosha Schools 2017; A.C. v. of Martinsville 2023; G.G. v. Gloucester County School Board 2020; Grabowski v. Arizona Board of Regents 2023).
The 2024 rules codify some other notable changes into law, such as allowing informal resolution (like restorative justice conversations) without someone filing a formal Title IX complaint, permitting the same person to serve as the investigator and decision-maker, and mandating consultation between the special education administration and Title IX coordinator when students with disabilities are involved in a Title IX complaint.
Title IX Regulations Cases
Within a week of the 2024 rules being issued, various lawsuits emerged. At current count, 26 states have sued the federal government to stop the implementation of these regulations, the primary concern being the explicit protection of LGBTQIA+ students.
While schools were required to be compliant with Title IX by August 1, 2024, in 26 states and several hundred schools, that date is now “on hold.” At the time of this writing, judges have issued preliminary injunctions (“pause buttons”) that apply to 26 states: Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming (State of Tennessee, et. al. v. Cardona et. al., 2024; State of Louisiana et. al. v. Department of Education, 2024). One injunction also applies to individual schools outside of these 26 states where the school (in any state) has school affiliations with Young America’s Foundation or Female Athletes United, or a minor child of a member of Moms for Liberty attends. As of July 31, 2024, these three organizations filed lists with the court stating their affiliations in 300 K–12 schools and almost 800 colleges in every state (Sokolow, 2024).
An injunction is a court order requiring someone to either perform or stop performing a specific action. In this case, these preliminary injunctions mean that schools in those 26 states and 400 more individual schools across the country (and probably more, when it’s all said and done) cannot implement any part of the 2024 regulations and must stick with the 2020 version.
These preliminary injunctions will continue to work their way through the federal courts. The U.S. Supreme Court ruled on August 16, 2024, that it will not intervene in the preliminary injunctions, and the 26 states must hit the “pause button” on implementing any part of the 2024 regulations. The U.S. Department of Education confirmed that the 2024 regulations are in effect for 24 states, but the 2020 regulations are in effect for 26 states and 400 individually named schools. Seven of the 26 states (Alaska, Arkansas, Indiana, Montana, South Carolina, Virginia, and West Virginia) are under conflicting court rulings on the topic of Title IX’s protection of LGBTQIA+ students. Several more states have state laws that may apply (GLSEN, 2024).
Recent Developments From the Supreme Court
Recent Supreme Court developments will have a direct impact on Title IX as well. Specifically, in Loper Bright Enterprises v. Raimondo (2024), the Supreme Court overturned a 1984 precedent (Chevron v. National Resources Defense Council) that granted deference to agencies in their interpretation of ambiguities in federal law. While not a case directly about education, the implications of the Loper decision will be far-reaching, including how courts will treat the U.S. Department of Education’s interpretations of federal civil rights laws, including Title IX (Walsh, 2024).
Conclusion and Recommended Resources
Given the complex and constantly changing legal landscape, each school district needs to consult with their attorneys. At the start of the 2024–25 school year, it is possible that one school district operates under the 2024 Title IX regulations and a neighboring district down the road operates under the 2020 regulations. It’s even possible that an elementary school and high school in the same district operate under different federal regulations. For ongoing resources:
- ATIXA keeps an updated map of Title IX injunctions: atixa.org/regs/#injunction
- Imprint Legal Group posts monthly on Title IX application and other civil rights in schools: imprintlegalgroup.com/musings-1
- The “Title IX and Civil Rights Podcast” offers 10-to-20-minute weekly updates on Title IX.
- The Education Rights Institute at the University of Virginia School of Law produces easy-to-understand videos on civil rights laws in schools: law.virginia.edu/education Â
Maria M. Lewis, JD, PhD, is an associate professor of education at Pennsylvania State University. She teaches courses on education law and leadership for equity, diversity, and inclusion. Jessica Heiser, Esq., is a practicing school law attorney and certified diversity, equity, inclusion, and justice practitioner. She is the founder and lead project attorney of Imprint Legal Group, a law and consulting firm focused on legal compliance and culture.
References
A.C. by M.C. v. Metro. Sch. Dist. of Martinsville, No. 22-1786, 2023 WL 4881915
(7th Cir. 2023).
G.G. v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020).
GLSEN. (2024). GLSEN navigator. maps.glsen.org
Grabowski v. Arizona Board of Regents, 69 F.4th 1110 (9th Cir. 2023).
Grayer, A., & Stracqualursi, V. (2020, May 6). DeVos finalizes regulations that give more rights to those accused of sexual assault on college campuses. CNN.
cnn.com/2020/05/06/politics/education-secretary-betsy-devos-title-ix-regulations/index.html
Loper Bright Entreprise v. Raimondo, 603 U.S. ___ (2024).
Modan, N. (2024, July 23). Administration asks Supreme Court to allow partial Title IX rule enforcement where blocked. K–12 Dive. k12dive.com/news/Education-Justice-Department-asks-supreme-court-enjoin-stay-title-ix/722126/
Rura, N. (2024). A closer look at new Title IX regulations. The Harvard Gazette. news.harvard.edu/gazette/story/2024/05/a-closer-look-at-new-title-ix-regulations/#:~:text=The%20core%20of%20Title%20IX,that%20receives%20any%20federal%20funding
Sokolow, B.A. (2024, June 20). Update for ATIXA community on recent Title IX regulations injunctions (Revised 7/16/24). Association of Title IX Administrators.
atixa.org/blog/update-for-atixa-community-on-recent-title-ix-regulations-injunctions/
State of Louisiana et. al. v. Department of Education, CASE NO. 3:24-CV-00563 (W.D. LA 2024).
State of Tennessee, et. al. v. Cardona et. al., Civil Action No. 2: 24-072-DCR
(E.D. KY 2024).
The Leadership Conference on Civil and Human Rights. (2022, September 9). Civil rights community comment urging strong Title IX rule. civilrights.org/resource/civil-rights-community-comment-urging-strong-title-ix-rule/
U.S. Department of Education. (2024, July 19). Fact Sheet: U.S. Department of Education’s 2024 Title IX Final Rule Overview. ed.gov/about/offices/list/ocr/docs/t9-final-rule-factsheet.pdf
U.S. Department of Education. (2024, July 31). Rulemaking and regulations by the Office for Civil Rights: Sex Discrimination. ed.gov/policy/rights/reg/ocr/index.html
Walsh, M. (2024, June 28). What the Supreme Court’s Chevron decision could mean for Biden’s Title IX rule. Education Week. edweek.org/policy-politics/what-the-supreme-courts-chevron-decision-could-mean-for-bidens-title-ix-rule/2024/06
Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 20+17).