Injunctions Against the New Title IX Rules: What Colleges and Students Need to Know
| | Student Rights, Title IX
As expected, federal judges in numerous states have issued injunctions blocking enforcement of the new Title IX rules released by the Biden Administration in April 2024. Attorneys general in more than 20 states had banded together to stop enforcement of the rules for a wide variety of reasons. These lawsuits were strategically filed in states connected with federal appellate courts that are more likely to uphold the injunctions, but the appellate decisions are far from certain at this point.
With state administrators telling schools not to enforce the rules, federal judges blocking enforcement, and the Department of Education still insisting the rules are valid, what should schools be planning to do? What should students expect when schools start for the year?
August 1 Deadline for Compliance
The Department of Education gave colleges and universities until August 1, 2024 to comply with new requirements regarding the handling of Title IX violation complaints. This seems like an extremely tight deadline given that the rules weren’t released until April, but the changes schools are expected to adopt were proposed more than two years ago. The final rules released in April differ very little from the proposals issued in 2022, so colleges have actually had considerable time to prepare for change.
Now, many administrators need to determine whether to put preparations on hold or continue preparing for the change. It is unlikely that issues will be resolved by August 1. If and when injunctions are overturned, schools may be expected to comply immediately. Some consultants are recommending that schools get policies ready but hold off on implementation, with the idea that they may need to be ready to change over at the drop of a hat.
Three Different Situations
In some states, the attorney general and majority of voters clearly support the new Title IX rules, and schools can establish and implement new policies with confidence—at least until the issue gets to the Supreme Court level. In states where judges have issued preliminary injunctions against enforcement of the new rules, schools can’t put policies in place that conflict with the older rules, although they should have new policies ready in case the injunction is overturned.
Then, there are states caught in the middle. In these states, a judge has not enjoined enforcement of the new rules, but the governor or attorney general has come out against the rules and ordered schools not to abide by them. This puts schools in a difficult position. If they fail to comply with Title IX provisions, they risk losing federal funding. However, if they adopt policies in accordance with rules state officials object to, they can face the ire of the state government. At many institutions, lawyers are said to be advising schools to follow state preferences over federal ones, seeing a greater risk of retaliation at the state level rather than the federal.
Will the Issue Be Resolved Nationwide by the Supreme Court?
In theory, a federal rule should affect the entire country. However, in a nation as large and politically diverse as the United States, we see in this situation that our system of checks and balances has led to different interpretations in different parts of the country. The way to change judicial interpretations requires action at a higher level in the court system. The injunctions issued in federal district courts will be challenged in the federal courts of appeal. And then certainly the losing side will ask the U.S. Supreme Court to hear the case and decide the issue.
But will they agree to take the case? After all, the Court only accepts a small percentage of cases brought to their attention. Typically, the U.S. Supreme Court decides to take on cases where appellate-level courts have disagreed with their interpretation of the law.
With the Title IX injunctions, because the lawsuits have been filed in states where they will be appealed to the more conservative judicial circuits, it is possible that the circuit courts who hear the cases will issue similar rulings. The U.S. Supreme Court may not be called on to settle a disagreement between circuits. However, there is certainly a disagreement in the interpretation of Title IX and the scope of departmental authority, even if it is not reflected at the circuit court level.
If the Supreme Court were to take on the case, the results could impact not only the Department of Education’s ability to implement broad Title IX regulations but also the ability of other federal agencies to issue regulatory commands. The potentially wide scope of a decision and the ability to strengthen or reduce the regulatory power of the executive branch could tempt the Supreme Court to take the case.
Can a Lower Court Issue a Nationwide Injunction on the Title IX Rules?
Typically, a ruling at the district court level only applies to the parties in the particular proceeding. In the case of the preliminary injunctions issued in the Title IX cases this year, the rulings apply to the states that participated in the lawsuit.
But sometimes, judges issue injunctions that apply not only to their geographic area of jurisdiction but to the entire country. Their wide reach and application to parties not involved in a lawsuit could make these injunctions controversial. However, because nationwide/broad injunctions have been used in recent years to block policies issued by administrations on both ends of the political spectrum, the concept of the nationwide injunction has not been as controversial as might be expected.
Most legal activists don’t question whether courts actually have the authority to issue sweeping national injunctions, but they jump to the issue of how the injunctions are used politically. Some scholars who have addressed the issue believe such authority could be justified under Article III of the Constitution because it does not set limits on the remedial powers of the federal judiciary.
Whether nationwide injunctions are technically permissible or not, they do exist, and courts have used them more frequently in the last decade, causing many to call for reform to prevent abuse of the practice. While nationwide injunctions are more common than they were ten years ago, however, they are still a rarity. Courts appear to exercise restraint in deciding whether and when to enjoin the application of a law to individuals outside the specific case they are addressing.
Will one of the judges deciding Title IX issues attempt to exercise nationwide authority? In the recent decision issued in the U.S. District Court for the District of Kansas, the Court enjoined enforcement of the new rules in Alaska, Kansas, Utah, and Wyoming. The decision also enjoined enforcement at specific schools, including those attended by members of Young America’s Foundation, schools attended by members of Female Athletes, United, and schools attended by the children of Moms for Liberty members. This extends the reach potentially nationwide, but only so far as it impacts those who were part of the lawsuit. Plaintiffs in the case asked for a nationwide injunction, but the Court refused, noting that such an injunction would “stop the Final Rule from taking effect for everyone, including States which clearly do not want such relief.” So far, a judge has not extended the ban on enforcement to those not referenced in the lawsuit, but it could happen in the future.
What Should Students Expect?
Schools are taking different approaches to this uneasy situation. While institutions are facing considerable uncertainty, however, as a practical matter, students still find themselves in the same starting position. The first major step in any Title IX case or school code of conduct case is to look at the school policies that define offenses and establish policies for filing, investigating, and adjudicating complaints. The policies may or may not comply with federal laws, but the first step is to consider the policies themselves and determine whether the school complied with those policies. That step does not change.
Students need to familiarize themselves with school policies before they ever set foot on campus. In the rush of preparations, the rules and policies are often overlooked. Many students and their parents are barely even aware that a school has rules until a student is accused of a violation. That is a problem.
Students need to understand crucial issues, such as what is required to consent to sexual activity under school policies to avoid allegations of sexual assault. They need to realize the actions that can constitute harassment that creates a hostile environment. They need to know when fascination with a crush could be treated as stalking, which is frequently a problem for students who are shy or on the autism spectrum. They also need to be aware of policies and protections regarding intimate partner violence and a host of other issues. It is vital to understand when behaviors cross the line and become unacceptable and the options available to file a complaint or get help.
So, Which Title IX Requirements Apply to Your Situation?
Under the current set of federal rulings, the U.S. Department of Education can enforce the new rules in only a limited number of states. Moreover, in those states, some institutions will be exempt from compliance if students fall into one of the categories described in the Kansas decision. This could change with the results of new lawsuits. Basically, institutions need to check the daily news–or consult a specialized practice Title IX attorney– before determining whether they should be working under the 2020 version of the rules or the 2024 version of the rules.
Gender Identity is the Key Issue
For the Court in the Kansas case and other cases, the biggest problem with the new rules is the application of Title IX to gender identity. The plaintiffs in the case argued that this interpretation goes against the plain language of Title IX, which prohibits discrimination “on the basis of sex.” The Court observed that they are not required to accept an administrative agency’s interpretation of a term when a statute is ambiguous but instead should exercise “independent judgment” when determining whether the agency is operating within statutory authority.
The Court examined the “ordinary meaning” of the language in the statute and concluded that “the unambiguous plain language of the statutory provisions and the legislative history makes clear that the term “sex” means the traditional concept of biological sex in which there are only two sexes, male and female.” The defendants had argued that discrimination on the basis of gender identity constituted discrimination on the basis of biological sex. In answer, the Court noted that Title IX allows differential treatment on the basis of sex for certain purposes and that “not all differential treatment based on biological sex is discrimination under Title IX.”
Although the plaintiffs in the case raised the issue of transgender athletes playing on women’s sports teams, the court noted that this issue is not proper for consideration because the Department has not released final regulations on the issue.
Overall, the Court concluded that the Department of Education exceeded its statutory authority by expanding the definition of discrimination on the basis of sex and that the interpretations of sex and discrimination are contrary to the statutory language and historical context of Title IX.
Where Do We Go From Here?
As noted above, students need to look first at the policies and procedures of their individual academic institutions. In many cases, schools are free to adopt policies that offer more protection than what is required by law. Students have a contractual obligation to follow the procedures they agree to by enrolling in the school.
If you have a concern that a policy violates the rules that apply to your institution at a particular time, it is a good idea to consult an attorney who is focused on the complex realm of Title IX enforcement. The team at Nesenoff & Miltenberg, LLP is dedicated to upholding Title IX ideals and rights for complainants and respondents, and we help individuals all over the country who find their rights violated in campus proceedings. For a confidential consultation to discuss your particular issues, contact our team online or call our office at 212-736-4500 today.