Legal update: 2024 Title IX regulations have been vacated

As explained in a previous issue of California School News, in April 2024 the Biden Administration issued new Title IX regulations effective Aug. 1, 2024. Among other things, these regulations made significant changes to Title IX sexual harassment procedures — such as those governing the investigation of sexual harassment complaints — while expanding gender-identity and pregnancy protections. After their release, the regulations faced a series of legal challenges from states, individuals, and organizations. These challenges created a patchwork legal landscape in which some schools or states were subject to the new regulations and others were subject to the previous version that was issued in 2020.

On Jan. 9, 2025, in the case State of Tennessee v. Cardona, a court in the Eastern District of Kentucky issued a decision striking down the new regulations. In ruling on the plaintiffs’ motion for summary judgment to invalidate three specific provisions, the court vacated the new regulations in their entirety, holding that the U.S. Department of Education exceeded its authority in issuing the regulations, that the regulations violate the U.S. Constitution, and that the regulations are arbitrary and capricious. Shortly afterwards, on Jan. 15, 2025, the Department of Education’s Office for Civil Rights issued guidance stating that the decision vacated the new regulations nationwide.

In the case, the scope of “discrimination on the basis of sex,” the “de minimis harm” standard used for evaluating discrimination, and the definition of “sex-based harassment” were the specific provisions called into question by the plaintiffs. The court analyzed the lawfulness of these provisions using a standard established by the federal Administrative Procedures Act.

In its decision, the court explained that the Department of Education, as an executive agency, has authority from Congress to issue rules and regulations to effectuate laws such as Title IX, but that such authority is not without limits. The court found that the new Title IX regulations’ definition of “discrimination on the basis of sex” to include discrimination related to a person’s gender identity exceeded the department’s limits because the expansion is not supported by the text of Title IX, the enabling statute in this case. In reaching this conclusion, the court rejected the Department of Education’s attempt to analogize the new regulations’ gender-identity protections to those granted by Title VII and recognized recently by the U.S. Supreme Court in Bostock v. Clayton County.

In addition, the court found that the new regulations violate the Constitution in several ways. First, related to free speech, the court stated, “the First Amendment does not permit the government to chill speech or compel affirmance of a belief with which the speaker disagrees.” The regulations, the court described, require this kind of affirmance in a belief because they include a subjective standard to be used in harassment analysis. This subjective standard creates a “reasonabl[e] fear that teachers’ (and others’) speech concerning gender issues or their failure to use gender-identity-based pronouns would constitute harassment.”

Additionally, the court noted that, by expanding the analysis for harassment to include a subjective component along with an objective component (the regulations specifically state, “[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. . . .”), the new regulations are too broad. The regulations are not only overbroad, but they are also too vague, the court noted. The court described that the regulations, “are so vague that recipients of Title IX funds have no way of predicting what conduct will violate the law.” As a final basis of unconstitutionality, the court described that the regulations violate the Spending Clause because it requires unconstitutional action and “expands Title IX to encompass entirely new subject matter that is not contemplated by the text of the statute.”

Lastly, the court found the new regulations impermissibly “arbitrary and capricious” under the Administrative Procedures Act. The court based this determination on the Department of Education’s failure to provide a clear rationale for its regulatory changes. Further, the court concluded that the new regulations create too many inconsistencies in Title IX as a whole.

In vacating the new regulations entirely, the court concluded that “the three challenged provisions fatally taint the entire rule” and “while there appears to be at least one provision that is not directly impacted by the plaintiffs’ challenge, […] it simply is not proper for the Court to rewrite the regulations by excising the offending material, particularly when rulemaking is the exclusive duty of the Executive Branch.” Consequently, the court saw no way to leave parts of the new regulation in place and remove the three provisions challenged in the lawsuit.

While a federal district court does not typically have jurisdiction over other states, as described, the Department of Education has accepted that this ruling vacated the 2024 regulations for all states. The regulations from 2020 are now effective again and, with a new administration in office, it is unlikely that this ruling will be appealed.