Cases & Developments

Memorandum and Order granting Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs, the states of Arkansas, Missouri, Iowa, Nebraska, North Dakota, and South Dakota, as well as A.F., a minor resident of Arkansas, challenged the Department’s new Final Rule on Title IX and sought preliminary injunction, asserting that it is contrary to law, exceeds the Department’s statutory authority, and is arbitrary and capricious. Plaintiffs assert that the Rule is inconsistent with the meaning of “sex” in Title IX, impermissibly expands the standard for harassment beyond the controlling precedent in Davis v. Monroe Cnty. Bd. of Educ. (1999), and impermissibly expands the definition of sex-based harassment to include “discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” In granting the injunction, the court found plaintiffs were likely to succeed on their claims that (1) it exceeds the meaning of Title IX to define discrimination on the basis of gender identity as a form of sex discrimination; (2) the Department’s new “severe or pervasive” standard for harassment for administrative enforcement cannot be squared with the “severe, pervasive, and objectively offensive” standard the Supreme Court adopted for private actions under Title IX in Davis; and (3) the Department’s “interpretation of sex in combination with its definition of sexual harassment” may unconstitutionally chill speech in areas such as the use of pronouns. The injunction prohibits defendants from enforcing the Final Rule with respect to schools affected by the order.   

Memorandum and Order denying Defendants’ Motion for Partial Stay. Plaintiffs, the states of Kansas, Alaska, Utah, and Wyoming, three organizations with student members in the plaintiff states and beyond, and one female middle school student from Oklahoma, sought to enjoin the Title IX Final Rule, alleging that the Department impermissibly defined “sex discrimination” to include discrimination on the basis of gender identity. The court enjoined the entire rule as to the plaintiff States, the individual plaintiff, and all schools attended by individual members of the plaintiff organizations or their minor children. On July 15, 2024, the court released a 26-page Notice of List of Colleges & Universities by Young America’s Foundation and Female Athletes United listing institutions that are now subject to the injunction, including hundreds in states where the final regulations are not otherwise enjoined. Defendants moved for partial stay to limit the scope of the injunction to the members of the organizations as of the date the injunction was entered and to apply only to certain provisions concerning discrimination on the basis of gender identity.  In denying the motion, though the court originally “did not specifically identify whether it applied to prospective members of the Plaintiff Organization,” it concluded “that all of the Plaintiff Organizations’ members, current and prospective, are entitled to the relief ordered.” It noted that “[s]upplements to the original notice may be appropriate as the case progresses.” In declining to limit the injunction only to the provisions regarding gender identity, the court cited Defendants’ interlocutory appeal to the Tenth Circuit. 

Memorandum Opinion and Order granting-in-part Plaintiffs’ Motion for Preliminary Injunction.  Plaintiffs, the state of Texas and two professors, challenged the Department of Education’s new Title IX Final Rule and sought preliminary injunction, alleging that it exceeds the statutory authority of Title IX, is arbitrary and capricious, and violates the First Amendment. In granting the injunction, the court found that plaintiffs were likely to succeed on the merits of their claims that (1) the Department’s extension of the definition of sex-based discrimination to include discrimination on the basis of sexual orientation or gender identity exceeds statutory authority under Title IX and is arbitrary and capricious; (2) the Final Rule’s ambiguity as to whether “misgendering” creates a hostile environment or is sex-based harassment would chill the professors’ protected speech in violation of the First Amendment; (3) the requirement that Texas provide insurance coverage for abortions in violation of its own law is arbitrary and capricious; and (4) several provisions on grievance procedures are arbitrary and capricious in their departure from due process, including permitting a single-investigator model, ambiguity as to whether schools must give parties access to evidence, and making live hearings and questioning optional.  The injunction is limited to the state of Texas and the two individual plaintiffs.   

Memorandum and Order granting Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs, the states of Kansas, Alaska, Utah, and Wyoming, three organizations with student members in the plaintiff states and beyond, and one female middle school student from Oklahoma, sought to enjoin the Title IX Final Rule, alleging that the Department impermissibly defined “sex discrimination” to include discrimination on the basis of gender identity. The court found that plaintiffs were likely to succeed in their claims that (1) the definition is inconsistent with the meaning of “sex” in the statute; (2) the Department violated the major questions doctrine by attempting to regulate on an issue of vast economic and political significance without clear statutory authority; (3) it violated the Spending Clause because Congress had not put recipients on notice that sex discrimination includes gender identity; (4) the Final Rule is impermissibly vague and overboard because it subjects the plaintiff organizations’ members to potential investigation and discipline for expressing their beliefs about gender identity and transgender issues, thereby likely chilling their speech; and (5) the Final Rule is arbitrary and capricious.  The court enjoined the entire rule as to the plaintiff States, the individual plaintiff, and all schools attended by individual members of the plaintiff organizations or their minor children. The plaintiff organizations have until July 15, 2024, to file notice in the record of the schools their members attend.