Cases & Developments

Order granting Plaintiff-Appellants’ Motion for Administrative Injunction. Plaintiffs, the States of Alabama, Florida, Georgia, and South Carolina and four membership associations, sued the U.S. Department of Education and sought preliminary injunction related to the Department’s 2024 Title IX Final Rule, challenging the Department’s inclusion of discrimination on the basis of gender identity within the definition of sex discrimination, expansion of the definition of sexual harassment, and changes to the procedures schools are required to follow in response to complaints of sexual harassment. The district court denied plaintiffs’ motion for preliminary injunction, finding plaintiffs had failed to sustain their burden of establishing a substantial likelihood of success on each of these claims. On interlocutory appeal, the Eleventh Circuit granted plaintiff-appellants’ motion for administrative injunction and sua sponte set a briefing schedule. The administrative injunction will remain in effect pending further order of the court.

Order granting Plaintiff’s Motion for Preliminary Injunction. Plaintiff, the State of Oklahoma, sued the U.S. Department of Education and sought preliminary injunction with respect to the Department’s 2024 Title IX Final Rule. In granting the preliminary injunction, the court found that plaintiff was likely to succeed in its claim that the Final Rule’s expanded definition of sex discrimination to include discrimination based on gender identity exceeded the Department’s statutory authority, violated the major questions doctrine and the Spending Clause’s clear notice requirement, and was arbitrary and capricious. It also found that the Final Rule’s departure from the “clear and pervasive” standard for actionable harassment in Davis v. Monroe County Board of Education (U.S. 1999) is likely contrary to the First Amendment because “[w]hether conduct or speech is considered harassment under the Final Rule is dependent on broad statements and vague terminology that the Department has elected not to define.” The injunction is limited to the State of Oklahoma and applies to the Final Rule in its entirety. 

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.