Cases & Developments

Memorandum Opinion and Order denying Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs, the States of Alabama, Florida, Georgia, and South Carolina and four membership associations, sued the Department of Education and sought preliminary injunction related to the Department’s 2024 Title IX Final Rule, alleging that (1) inclusion of discrimination based on gender identity within the definition of sex discrimination is contrary to law, the major questions doctrine and the Spending Clause’s clear statement requirement, and arbitrary and capricious; (2) expansion of the definition of sexual harassment beyond the standard adopted in Davis v. Monroe County Board of Education (U.S. 1999) to include conduct that is “so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the … educational program or activity” is contrary to law, likely to chill speech in violation of the First Amendment, and arbitrary and capricious; and (3) changes to the procedures schools are required to follow in response to complaints of sexual harassment are arbitrary and capricious with respect to requirements of due process. In its 122-page opinion denying preliminary injunction, the court found that plaintiffs failed to sustain their burden of establishing a substantial likelihood of success on each of these claims. 

U.S. Department of Education, Office for Civil Rights Title IX Overview Page. The overview page provides links to the 2024 Title IX regulations, the Department’s guidance documents related to the regulation, and links to earlier versions of the regulations. The page also notes in red type the current state of federal court orders enjoying the Department from enforcing the 2024 Final Rule, as well as the Department’s position that for states and schools subject to those injunctions the 2020 Title IX Final Rule remains in effect. The page is available via the shortcut ED.gov/TitleIX. 

Memorandum Opinion and Order granting Plaintiff’s Motion for Summary Judgment. Plaintiff, the State of Texas, sued seeking vacatur and permanent injunction on implementation or enforcement of the U.S. Department of Education’s 2021 Notice of Interpretation, Dear Educator Letter, and Fact Sheet (the “Guidance Documents”), which cited the Supreme Court’s decision in Bostock v. Clayton County to interpret the nondiscrimination protections of Title IX to prohibit discrimination on the basis of gender identity and sexual orientation. In granting summary judgment in favor of the State and awarding the requested relief, the court first held that the Guidance Documents are contrary to law and exceed the Department’s authority, finding that (1) the statutory text uses “sex” to mean biological sex and “identifies many situations in which differential treatment and separation is permissible;” (2) the Guidance Documents conflict with or undermine provisions of Title IX; and (3) the Department exceeded the clear-statement requirement of the Spending Clause to give the States congressional notice of their obligations and attempted to decide a major question properly left to Congress. It rejected the Department’s application of the underlying reasoning of Bostock to Title IX, noting that “Bostock stated without equivocation that it’s holding only applies to Title VII.” It further held that the Guidance Documents “constitute a substantive rule—rather than interpretive statements—subject to the APA’s notice and comment rulemaking process.”  The court enjoined the Department from implementing or enforcing the interpretation “against Plaintiff and its respective schools, school boards, and other public, educationally based institutions.” Update: On August 5, 2024, the court updated its order to provide, “This scope of this relief SHALL NOT extend to pending cases involving Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 89 Fed. Reg. 33,474 (Apr. 29, 2024) (to be codified at 34 C.F.R. § 106 on August 1, 2024).” 

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.