Kate L. Nash
Veronica E. PotterOn July 24, 2024, Judge Rodney Sippel of the United States District Court for the Eastern District of Missouri entered a preliminary injunction in State of Arkansas et al. v. U.S. Dept. of Education et al., blocking the Department of Education from enforcing the recently released Title IX regulations within the states of Arkansas, Missouri, Iowa, Nebraska, North Dakota, and South Dakota. This brings the total number of states where the Department of Education is enjoined from enforcing the new regulations to 21. While there are two courts still considering requests for an injunction, to date, no court has denied a request for an injunction blocking enforcement of the new Title IX regulations. Like the recent opinion in State of Kansas, et al. v. U.S. Dept. of Education et al., the opinion makes clear that it does not prohibit institutions from continuing to comply with the institution’s own policies, or state or local laws.
The plaintiffs in State of Arkansas et al. v. U.S. Dept. of Education et al., challenge two provisions of the new Title IX regulations – the new definition of “sex” which includes sexual orientation and gender identity and the new definition of “sex-based harassment,” particularly the revised definition of a hostile environment that requires conduct be “severe or pervasive” rather than the previous definition which required conduct to be “severe, pervasive, and objectively offensive.” The plaintiffs claim that the Department of Education exceeded its statutory authority in broadening both the definitions of “sex” and “sex-based harassment.”
The court agreed with the plaintiffs’ arguments on both definitions, finding that the plaintiffs met the threshold for an injunction of having a “fair chance” of success on the merits. Judge Sippel repeatedly emphasized that he was not, at this time, deciding these issues on the merits. Instead, he found that the plaintiffs have a “fair chance of prevailing,” and was issuing the preliminary injunction for that reason.
The court found that looking at the statutory language and legislative history of Title IX, as well as existing caselaw, that the plaintiffs had a fair chance of prevailing on the argument that “sex” refers to “biological sex.” The court relied on the Supreme Court’s recent decision in Loper Bright Enter. v. Raimondo, which requires courts to exercise independent judgement rather than rely on agency interpretation of law. The court then found for these reasons that there was a fair chance the plaintiffs would prevail on their argument that the Department of Education had exceeded its statutory authority and/or acted contrary to law in expanding the definition of “sex” and “sex-based harassment.”
Plaintiffs also argued that the Department of Education exceeded its authority and acted contrary to law by expanding the definition of sex-based harassment beyond the standard articulated by the Supreme Court in Davis v. Monroe Cnty. Bd. Of Educ., which found sexual harassment to be actionable under Title IX where is “is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” The Department of Education argued that the regulations set the standard for administrative enforcement and therefore a broader standard is warranted than the Davis standard, which applies to private litigation. The court again cited to Loper Bright, which requires courts to exercise independent judgement rather than rely on agency interpretation of law, in finding that the plaintiffs had a fair chance of prevailing on this argument.
Plaintiffs also argued that the Department of Education’s expanded definitions of “sex” and “sex-based harassment” violate the First Amendment by unconstitutionally chilling speech. The court cited to a recent Eighth Circuit case that held a government official was not required to use someone’s preferred pronouns and that the First Amendment right to free speech includes “misuse of a pronoun.” Beard v. Falkenroth, 97 F.4th 1109, 1117 (8th Cir. 2024). The court found that the plaintiffs had a fair chance of prevailing on this argument.
The court then also found that the plaintiffs faced the potential for irreparable harm if the regulations went into effect in the form of costs to prepare new policies, materials, and hire new staff and in preventing the enforcement of several state laws that are in conflict with the new regulations. The court also found that since the status quo on Title IX had largely remained unchanged for 50 years, that the Department of Education’s interest in enforcing the new regulations was outweighed by the plaintiffs’ interest in protecting constitutional rights.
The court declined to grant the plaintiffs’ request for a nationwide injunction, and instead limited the application of the preliminary injunction to the plaintiff states (Arkansas, Missouri, Iowa, Nebraska, North Dakota, and South Dakota). The court did, however, grant part of the plaintiffs’ requested relief, by enjoining the entirety of the new Title IX regulations, not just the challenged definitions. The court held that these definitions “permeate the entire Rule,” so attempting to remove those provisions would be nearly impossible and would not fully remedy the potential harms to the plaintiffs.
Nothing in this decision prevents an institution from continuing to comply with its own policies, or state or local laws. This preliminary injunction only applies to the Department of Education and its officials. The court’s order cites to the ruling in State of Kansas, et al. v. U.S. Dept. of Education et al., in stating that the injunction prohibits the Department of Education from “demanding compliance with the Final Rule by the schools affected by [the] order, or imposing any consequences for such school’s failure to comply with the Final Rule.”
An institution that already prohibits discrimination on the basis of gender identity under its own policies may continue to prohibit discrimination on the basis of gender identity. Missouri institutions should be aware that Missouri courts have interpreted the Missouri Human Rights Act to prohibit discrimination on the basis of gender identity, including in the recent decision by the Missouri Court of Appeals for the Western District in RMA v. Blue Springs R-IV School District.
Missouri institutions should consult with their legal counsel to determine appropriate next steps. Tueth Keeney will continue to monitor developments related to the Title IX regulations, including this injunctions. If you have questions about the Title IX regulations, please contact a Tueth Keeney attorney.
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The law firm of Tueth Keeney Cooper Mohan & Jackstadt, P.C. (the “Firm”), has one of the largest and most successful education law and higher education groups in the country. The Firm regularly serves the legal counsel needs of approximately 150 school districts throughout Missouri, and has one of the largest school law practices in Central and Southern Illinois. The Firm also represents numerous colleges and universities throughout Missouri and Illinois. In addition, the Firm is one of approximately twenty law firms in the nation that have been appointed to act as Select Counsel to represent higher education institutions insured by United Educators Insurance Risk Retention Group, Inc., the nation’s largest insurer of colleges and universities. The attorneys in the Firm’s education and higher education groups provide a full range of services to school districts, colleges, and universities, ranging from day-to-day counseling on legal issues, to representation in complex litigation.
Kate L. Nash is a shareholder of the firm and practices primarily in the areas of higher education, litigation, and labor and employment law. Kate acts as outside general counsel to numerous institutions of higher education, advising those organizations on a wide range of legal issues. In addition, Kate is frequently asked to conduct internal investigations regarding complex and sensitive matters in workplaces and at educational institutions. Kate also has extensive litigation experience litigation experience in federal and state courts and before federal and state administrative agencies. Kate is a frequent lecturer and author on employment and higher education issues and is active in the National Association of College and University Attorneys. She was an adjunct professor at Saint Louis University School of Law for numerous years, where she taught a course on non-profit organizations. Kate earned her B.A. from Cornell University and received her law degree at Washington University. Kate is a member of the Firm’s Management Committee.
Veronica E. Potter practices primarily in the areas of higher education, litigation, and labor and employment law. Veronica represents colleges, universities, and private employers in education and employment litigation matters. Veronica started her legal career as a prosecutor, where she gained experience in all stages of litigation, including case investigation, discovery, arguing pre-trial motions, and presenting cases to both judges and juries. Prior to joining the firm, Veronica also practiced civil litigation at a large defense firm in St. Louis.