Emerging Challenges

By Kathleen E. Dion and Sabrina Galli

By Aug. 1, 2024, universities across the country were required to implement the Biden administration’s new regulations concerning Title IX of the Education Amendments of 1972, which contained numerous expansions on the law’s protections.

Kathleen Dion

Sabrina Galli

For example, the regulations, released in April 2024, redefined sex discrimination to include “all forms of sex-based discrimination,” as opposed to only sexual harassment, and include discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.

While these regulations are intended to expand protections for all under the Title IX umbrella, not all are happy with the expansions. As anticipated, litigation has emerged, challenging multiple portions of the new regulations and resulting in district courts issuing preliminary injunctions throughout the country barring enforcement of the 2024 regulations. Challengers to the new regulations oppose the expansion of the sex-discrimination definition to include discrimination based on gender identity, the ‘de minimis harm’ standard, and the definition of hostile-environment harassment as it applies to gender-identity discrimination.

As a result of these lawsuits, the 2024 regulations have not been enforced in nearly 26 states, encompassing a large portion of the South and Midwest, including but not limited to Alabama, Arkansas, Florida, Georgia, Kansas, Louisiana, Mississippi, Missouri, Oklahoma, South Carolina, Tennessee, and Texas. Not only were these injunctions issued on a state-by-state basis, but one injunction out of Kansas barred enforcement of the 2024 regulations on any campus that had a chapter of one of three conservative organizations: Young America’s Foundation, Female Athletes United, or Moms for Liberty.

“As anticipated, litigation has emerged, challenging multiple portions of the new regulations and resulting in district courts issuing preliminary injunctions throughout the country barring enforcement of the 2024 regulations.”

The U.S. Department of Education (DOE) responded by asking the U.S. Supreme Court to partially stay the injunctions, allowing the non-challenged parts of the new regulations to go into effect. On Aug. 16, the U.S. Supreme Court, in Department of Education v. Louisiana, denied that request, citing the lower court’s findings that the provisions in dispute were too intertwined with other provisions of the rule to allow severability.

A dissent written by Justice Sotomayor and joined by Justices Kagan, Gorsuch, and Jackson disagreed, finding that the injunctions barring enforcement of the entire rule are too broad.

While the states enjoining enforcement of the 2024 regulations have fluctuated over the last few months, the U.S. Department of Education’s website provides a full list of enjoined 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. The Department also maintains a list of schools where the 2024 Title IX regulations currently cannot be enforced.

It should also be noted that schools on the department’s list are not limited to schools in the above-listed states. For example, the list currently has nine schools listed from Connecticut, four schools in Massachusetts, 20 schools in New York, and several schools in California.

Institutions included in either list may be asking, what now? In light of the litigation and injunctions, the DOE has issued guidance explaining that — in states or schools where the 2024 regulations are enjoined — the Title IX regulations, as amended in 2020, apply.

Some institutions covered by the regulations have not amended their policies that applied during the 2023-24 school year. Other schools, particularly those that are not in the 26 states covered by a statewide injunction, have decided to implement policies that are consistent (either wholly or in part) with the new 2024 regulations, reasoning that the injunctions do not apply to the schools themselves but rather to the DOE’s ability to enforce the new regulations to those schools.

As the litigations play out in due course, institutions in affected states will want to be on the lookout for any changes to these preliminary injunctions as well as consider whether any state laws weigh into their consideration whether to amend their policies to be consistent with the new regulations.

Kathleen E. Dion is chair of the education industry team at Robinson+Cole. She represents private schools, colleges, and universities in a variety of civil matters, such as tuition disputes, allegations of staff misconduct, and Title IX matters. Sabrina Galli is a member of Robinson+Cole’s business litigation group and education industry team. She represents corporate clients in general commercial litigation matters involving breach of contract and business torts, as well as in arbitrations, mediations, and settlement negotiations.