Federal Court Strikes Down Title IX Rule

The 2024 Final Rule

The Biden Administration’s 2024 amendments to Title IX regulations were a significant departure from the prior, Trump-era rules issued in 2020. The new Rule took the position that discrimination based on sexual orientation or gender identity were within the scope of Title IX’s prohibitions. The Rule also lowered thresholds that mandated investigations into sexual misconduct, changed evidentiary standards, and changed what is required in a Title IX adjudication process. The Rule became effective August 1, 2024, but due to a series of legal challenges was enjoined in 26 states and at those schools attended by members of certain plaintiff organizations, regardless of location.

The Court’s Decisions

In a prior ruling on June 17, 2024, the court ruled in favor of the plaintiffs and issued a preliminary injunction that prevented the Rule from going into effect in the plaintiff-states, as well as at the individual schools attended by children of the plaintiff-intervenors who sought to extend the injunction into states that did not challenge the Rule. The court’s January 9 ruling on the merits granted the plaintiffs’ motion for summary judgment and vacated the Rule nationwide, concluding “the Final Rule and its corresponding regulations exceed the Department’s authority under Title IX, violate the Constitution, and are the result of arbitrary and capricious agency action.”

Central to the court’s decision is its conclusion that the Department exceeded its statutory authority by “impermissibly redefin[ing] discrimination on the basis of sex for purposes of Title IX.” The Rule provided that under Title IX, “[d]iscrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” 34 C.F.R. § 106.10. The Department based its definition on the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, Ga., which found that sex discrimination encompasses discrimination based on sexual orientation and gender identity for purposes of Title VII, which bars employment discrimination on the basis of sex and other protected categories.

But the court found the Department read Bostock “far too broadly” and held that importing the definition of discrimination “because of” sex in Title VII to discrimination “on the basis of sex” in Title IX was improper. The court concluded that “it is abundantly clear that discrimination on the basis of sex means discrimination on the basis of being a male or female.” In the court’s view, Title IX was enacted to level the playing field between men and women, citing several examples where Title IX permits institutions receiving federal funds to separately accommodate males and females “based on the enduring physical differences between the sexes.” Thus, the court found the Department’s inclusion of discrimination based on gender identity in its regulatory definition of discrimination “on the basis of sex” would be inconsistent with Title IX’s plain meaning.

Further, the court found the Rule suffered from constitutional and administrative infirmities in that it: offended the First Amendment, was both vague and overbroad, violated the Spending Clause, and was arbitrary and capricious.

Vacatur of the Rule

The court’s decision jettisons the Rule in its entirety, rejecting the Department’s argument for severance of only the allegedly offending regulations. The court found that even those provisions of the Rule not directly challenged—such as requirements for handling grievances, training, and processing complaints—either refer to or incorporate those that the court invalidated. Moreover, the court concluded vacatur of the full Rule would not have a disruptive effect, but instead merely “cause a return to the status quo.”

Practical Effect

For those schools that changed their Title IX policies to comply with 2024 Rule, their policies likely require revision. The 2020 regulations, which are not consistent with the 2024 Rule, are once again the law of the land and will remain so under the incoming administration absent contrary guidance from the Department of Education.

One key difference between the 2024 and 2020 regulations relates to Title IX adjudications. Specifically, the 2024 Rule allowed schools to opt out of the advisor-conducted cross-examination and a live hearing. It also allowed schools to use the “single-investigator” model where the adjudicator may be the same person as the Title IX Coordinator or the investigator. Now, the single-investigator model is again prohibited and live hearings with advisor-conducted cross-examination are required. 

As another key example, the standard for assessing whether a hostile environment exists is once again whether unwelcome conduct was so “severe, pervasive, and objectively offensive” that it effectively denies a person equal access to the school’s education program or activity. This replaces the lower standard set forth in the 2024 Rule which defines a hostile environment as unwelcome conduct that is subjectively and objectively offensive and is “so severe or pervasive” that it limits or denies a person’s ability to participate in or benefit from a school’s education program or activity.

Additionally, because discrimination on the basis of sexual orientation or gender identity was not encompassed by the 2020 regulations, claims of discrimination on the basis of those protected categories no longer fall within the ambit of Title IX. However, schools may nonetheless be required to prevent such forms of discrimination pursuant to other state and local laws, and remain subject to Title VII, which prohibits such discrimination in the workplace.

Conclusion

The decision has implications for educational institutions that revised their Title IX policies and training protocols to comply with the 2024 Rule. While the court’s opinion immediately invalidates the Rule, it does not specify a timeframe for compliance, and the Department has not yet indicated its expectations as to when schools should implement new policies and related training. Given that uncertainty, institutions would be well served to proceed with necessary changes without delay.

Ballard Spahr lawyers in the Education; Diversity, Equity, and Inclusion Counseling; White Collar Defense and Investigations; and Labor & Employment Groups are available to assist clients in navigating this new legal landscape.

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