Highlights
- The U.S. Department of Education (Department) cannot require schools subject to 26 state-based injunctions and/or identified on lists filed with a Kansas court to comply with the 2024 Title IX regulations, and it will not attempt to do so unless further legal developments permit it.
- The Department expects schools subject to an injunction to continue to follow the policies and procedures they adopted to comply with the 2020 Title IX regulations.
- The Department expects schools not subject to an injunction to comply with the 2024 Title IX regulations, effective Aug. 1, 2024.
Holland & Knight previously explained how a Kansas federal district court's unique injunction against the U.S. Department of Education's (Department) enforcement of the 2024 Title IX regulations impacted schools nationwide. (See Holland & Knight's previous alert, "Injunction of 2024 Title IX Regulations Impacts Schools Nationwide," July 18, 2024.)
This Holland & Knight alert provides updates as of Aug. 1, 2024, regarding the latest court rulings and Department position statements, as well as discusses their implications for implementing the 2024 regulations.
Recent Developments
Since July 18, 2024, the Kansas court clarified its position that its order enjoining the Department from implementing, enacting and enforcing the 2024 regulations against a list of schools, colleges and universities attended by members of certain nonprofit associations could be expanded to cover more institutions if the membership rolls of the associations expanded to include students who attend a longer list of schools. Expanded membership lists were filed with the Kansas court on July 26, 2024, and July 31, 2024, resulting in the addition of 10 more postsecondary schools to the list. The Department is maintaining and updating the list on its website. Institutions should expect that additional postsecondary schools will be added to the list, unless the U.S. Court of Appeals for the Tenth Circuit – which is considering an appeal of the district court's injunction decision – vacates or limits the scope of the injunction.
In other states, federal district courts in Missouri and Oklahoma, on July 24, 2024, and July 31, 2024, respectively, enjoined the Department from implementing, enacting and enforcing the 2024 regulations against, collectively, the states of Arkansas, Iowa, Missouri, Nebraska, North Dakota, South Dakota (Missouri case) and Oklahoma. On July 30, 2024, a federal district court in Alabama rejected a motion for preliminary injunction sought by Alabama, Florida, Georgia and South Carolina, but on July 31, 2024, the U.S. Court of Appeals for the Eleventh Circuit granted an emergency injunction. In doing so, the Eleventh Circuit ruled that the Department was temporarily "enjoined from enforcing the final rule ... pending further order of this Court," without indicating explicitly whether that injunction was limited to those four states. The Department argued in a subsequent filing that the circuit court's injunction should be limited to those four states and should not be construed as a nationwide injunction because the plaintiff states had not requested broader relief, but the court had not clarified that point as of the publication of this alert.
For its part, the Department held a webinar on the morning of Aug. 1, 2024, in which it emphasized that it would generally enforce the 2024 regulations starting Aug. 1, 2024, in the 24 states where injunctions are not in effect, as well as the District of Columbia and Puerto Rico. The Department also offered its position that in the 26 states and as to those schools where enforcement of the 2024 regulations is enjoined, the 2020 regulations would continue to apply. Written confirmation of these positions is included in a Pointers for Implementation guidance document issued by the Department and updated as of July 31, 2024. While webinars and guidance documents are not legally binding, they should provide grounds to push back if the Department ever took a contrary position in an administrative enforcement context. Regarding the pending litigation, the Department noted that it had appealed all of the injunction orders, argued that the Eleventh Circuit decision enjoined enforcement only in Alabama, Florida, Georgia and South Carolina (but not nationally), and indicated that it had asked the U.S. Supreme Court to intervene to permit the Department to enforce some aspects of the 2024 regulations even in states and as to schools where injunctions otherwise apply. To date, the U.S. Courts of Appeals for the Fifth and Sixth Circuits have issued decisions that were not supportive of the Department's positions. It is not clear when further appellate court decisions may be issued.
Implications
With so much up in the air, it is helpful to start with what is known at this point, which is:
- The Department cannot require schools subject to 26 state-based injunctions or identified on lists filed with a Kansas court to comply with the 2024 regulations. At this time, the Department has indicated that it will not attempt to do so unless further legal developments permit it.
- The Department expects schools subject to an injunction to continue to follow the policies and procedures they adopted to comply with the 2020 regulations.
- The Department expects schools not subject to an injunction to comply with the 2024 regulations, effective Aug. 1, 2024.
- Legal developments in this area are fluid and evolving daily. The Department is contesting the injunctions, and further developments will likely provide more definitive guidance.
Notwithstanding the above, some colleges and universities on the Kansas court's list are exploring voluntarily implementing the 2024 regulation-compliant policies and procedures they have developed over the last few months, to the extent they can do so without running afoul of the Department's position that schools on the list should continue to follow 2020 regulation-compliant policies and procedures. Institutions that are exploring that approach should work closely with legal counsel to identify areas of overlap and conflict and to add appropriate language to their new policies and procedures that emphasizes the state of flux caused by the legal developments summarized here and that indicates how the institution will determine which policy and procedures will apply in the event of a complaint of covered misconduct.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.