The U.S. Department of Education’s final rule for the 2024 Title IX regulations is effective today, August 1. However, due to legal challenges, more than half of the states remain under the 2020 rules.
What is Title IX?
Title IX protects individuals from discrimination based on sex in education programs or activities that receive federal financial assistance. Title IX applies to schools, local and state educational agencies, and other recipients of federal aid for education, such as libraries. A covered institution must operate its education program or activity in a manner free of discrimination based on sex.
The Proposed Regulations
The uncertainty started when the proposed 2024 Title IX regulations were adopted in April. State governments and private groups challenged the regulations in court, mainly because of the expanded protections for gender identity, expression, and sexual orientation. By mid-July, 15 states were covered by a patchwork of preliminary injunctions, all of which barred the Department of Education from enforcing the regulations in those states.
The Kansas District Court made a further mess of things by granting an injunction applicable to states and schools that enrolled members of specific organizations. For example, K-12 schools with students of parents belonging to Moms for Liberty members, and higher education programs with members of Female Athletes United or Young America’s Foundation, are included in the Kansas injunction.
What’s the Status of the Final Rule?
On July 31, with fewer than 24 hours until the regulations became effective, the 11th Circuit Court of Appeals granted an injunction prohibiting the Department from enforcing the final rule. Although the request was limited to the states of Alabama, Florida, Georgia, and South Carolina, the court’s order is not specific, leaving many of us wondering if it was intended to be a nationwide injunction.
Fortunately, the Department filed a “Notice of Compliance” with the court stating that it assumes the order applies only to the above-mentioned states. The Department also clarified that it will only enforce the regulations against any Title IX recipients who are not covered by an injunction, although the 11th Circuit has yet to clarify its order.
Next Steps
Currently, over 90 California K-12 schools are on the Moms for Liberty lists, and several California private and public colleges and universities, including community colleges, are covered by the Female Athletes United and Young America’s Foundation lists. The list of schools covered by an injunction continues to grow. Title-IX recipients in every state, including California, should ensure they are not covered under one of these organizational injunctions.
Until we receive some clarity, Title IX recipients under a state-wide injunction can expect the Department to continue enforcing the 2020 regulations, while those not covered by an injunction should implement the 2024 updates. Schools on the injunction list, but not in an enjoined state, should work with their legal counsel to develop a plan that works for their specific situation. But, as we’ve seen in the past few weeks, these situations change quickly, and all of us need to keep an eye on the federal court decisions to understand what is required.
