On January 9, 2025, Chief Judge Danny Reeves of the Eastern District Court of Kentucky (the “Court”) struck down the entirety of the “2024 Rule”, which sought to make major changes to Title IX. See State of Tennessee v. Miguel Cardona, 2:24-072-DCR, Dkt. 143 (E.D. Ky. Jan. 9, 2025).
As a result, the Title IX regulations adopted in 2020 are in effect nationwide.
Background
On April 29, 2024, the DOE issued the 2024 Rule, titled as “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Assistance.” 89 Fed. Reg.33474 (Apr. 29, 2024). The 2024 Rule made sweeping changes to Title IX, and was quickly subject to legal challenges across the nation.
One such case, State of Kansas v. U.S. Department of Education, 24-4041-JWB (D. Kan. 2024), resulted in a preliminary injunction that blocked the DOE from enforcing the 2024 Rule in schools where members of specific organizations attended. Many Illinois school districts were affected by this ruling, resulting in confusion and piecemeal implementation of the 2024 Rule changes across the state.
The challenged amendments discussed in Cardona include:
- The clarification that “[d]iscrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” 34 C.F.R § 106.10; see 89 Fed. Reg. 33476.
- The creation of a “de minimus” standard of harm, which prohibited differential treatment on the basis of sex that caused more than a de minimus harm to a person participating or attempting to participate in an education program or activity consistent with the individual’s gender identity. The 2024 Rule did not define “gender identity.”
- The redefining of “sexual harassment” to “sex-based harassment,” which was defined as “unwelcome sex-based conduct that, based on the totality of the circumstance, 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. . . .” 34 C.F.R. § 106.2 (emphasis added); 89 Fed. Reg. 33498. This change also applied to speech and conduct that occurred off-campus, including on social media.
The Court’s Ruling
Under the Administrative Procedure Act (“APA”), the Court can hold unlawful and set aside an agency action if it is deemed (1) arbitrary, capricious, or an abuse of discretion; (2) unconstitutional; or (3) outside the statutory jurisdiction of the agency. 5 U.S.C. § 706(2).
First, the Court found the DOE exceeded its statutory authority that permits it to implement rules and regulations to advance Title IX’s prohibition on sex discrimination, specifically discrimination “on the basis of sex.” 20 U.S.C. § 1682.
The Court explicitly set aside 34 C.F.R. § 106.10, based on the plain language of Title IX, stating:
[W]hen Title IX is viewed in its entirety, it is abundantly clear that discrimination on the basis of sex means discrimination on the basis of being a male or female. As this Court and others have explained, expanding the meaning of “on the basis of sex” to include “gender identity” turns Title IX on its head.
Cardona, 2:24-072-DCR, Dkt. 143, at 6 -7.
This presents special considerations and conflicting regulations for school districts. For example, transgender employees are protected federally under Title VII and the U.S. Supreme Court’s ruling in Bostock v. Clayton County Ga., 590 U.S. 644 (2020), but transgender students have no such federal protection.
Second, the Court ruled the 2024 Rule was unconstitutional. Specific concerns included the outcome of combining the de minimus harm standard with the definitions of sex discrimination and sex-based harassment. The result would require teachers to use names and pronouns consistent with the student’s gender identity, which the Court deemed violative of First Amendment speech protections. Additionally, the 2024 Rule was vague and overbroad because it lacked cleared parameters for identifying “subjectively” unwelcome sex-based conduct, which would prevent Title IX recipients from effectively recognizing conduct that violates the law.
Third, the Court determined the 2024 Rule was arbitrary and capricious. The DOE did not provide a sufficient explanation to justify its departure from its prior interpretations of Title IX.
The Court’s Remedy
The DOE argued that only the challenged portions of the 2024 Rule should be stricken. Unchallenged portions of the 2024 Rule include new grievance procedures, expanded training requirements, and recordkeeping responsibilities.
The Court refused to the parse out the regulations and instead, “conclude[d] that the entire [2024] Rule and corresponding regulations are invalid and must be set aside.” Cardona, 2:24-072-DCR, Dkt. 143, at 12.
In doing so, the Court entered a vacatur order, which “operates on the rule itself and prevents the rule’s ‘application to all who would otherwise be subject to its operation.’” Id. at 13 (quoting Kentucky v. Fed. Hwy. Admin., 728 F.Supp. 3d 501, 522 (2024). In plain terms – the vacatur order means the Eastern District Court of Kentucky’s decision renders the 2024 Rule unenforceable nationwide.
What Happens Next?
With this ruling, the 2024 Rule is vacated – or taken “off the books.” Id. at 13. The 2024 Rule cannot be applied to any entity that would otherwise be subject to its operation. Title IX regulations will revert to the 2020 version, and those regulations should be enforced and followed moving forward.
If school district policies were not yet updated to the 2024 Rule regulations, no action is required. If policies are updated, they should be amended to the prior policy, if the policy reflects the 2020 Rule.
The 2024 Rule changes required affirmative steps – like providing lactation spaces – which is no longer required. School districts can opt to continue providing those services. Some provisions, like permitting a single investigator-decisionmaker model, cannot be allowed moving forward and school districts may need to repeal those changes to avoid violating the 2020 Rule regulations.
The Court’s ruling is subject to appeal, although an appeal is unlikely.
The Court’s opinion is available here.
Authored by:
- Thomas M. Melody
- Kaylee M. Hartman