Kate L. Nash
Veronica E. PotterOn July 2, 2024, Judge John Broomes of the United States District Court for the District of Kansas entered a preliminary injunction in State of Kansas, 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 Kansas, Alaska, Utah, and Wyoming. This injunction is broader than previous injunctions as it also enjoins enforcement against schools attended by members of plaintiff organizations Young America’s Foundation and Female Athletes United, and by the minor children of members of Moms for Liberty. These organizations are required to submit lists of schools attended by their members (or their members’ children) by July 15, 2024. The court noted that the Department of Education will then need to determine whether patchwork enforcement is feasible, or whether the Department should voluntarily stay enforcement of the new Title IX regulations pending the outcome of the judicial proceedings. Notably, 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 opinion does, however, throw into question what standard the Department of Education would apply, should an institution be subject to a complaint or other review by the Department of Education’s Office for Civil Rights.
Challenges to the Title IX regulations
Twenty-six states have challenged the new Title IX regulations. Those challenges focus on the inclusion of gender identity in the meaning of “sex” for Title IX, thus requiring institutions to prohibit discrimination on the basis of gender identity and meet certain obligations in responding to complaints of discrimination on the basis of gender identity. The Department of Education has defended including gender identity, citing to the Supreme Court’s 2021 decision in Bostock v. Clayton County, which held that in an employment context, Title VII’s prohibition on discrimination on the basis of sex also included sexual orientation and gender identity.
Judge Broomes, citing to the Supreme Court’s recent decision in Loper Bright Enter. v. Raimondo, which overturned Chevron deference to agency interpretation, held that the court must exercise “independent judgement in deciding whether an agency has acted within its statutory authority.” The court then looked to the plain language of the Title IX statute and the legislative history of Title IX in deciding that “‘sex’ means the traditional concept of biological sex in which there are only two sexes, male and female.” The court held that Bostock does not apply to Title IX and that the Department of Education lacks the authority to expand sex to mean gender identity.
Federal judges in Louisiana and Kentucky previously entered injunctions blocking enforcement of the Title IX regulations in 10 states: Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia and West Virginia. Other injunctions did not include private party plaintiffs, and as such, the application of those injunctions is limited to those states. While the challenges to the regulations focus on the inclusion of gender identity in the definition of sex, all of the injunctions entered to date block the enforcement of the new Title IX regulations as a whole, including provisions related to grievance procedures for complaints of sex discrimination.
What does this mean for schools, colleges, and universities in Missouri and Illinois?
The state of Missouri is party to litigation challenging the new Title IX regulations, and that litigation is currently pending in the United States District Court for the Eastern District of Missouri, State of Arkansas et al. v. U.S. Dept. of Education et al., 4:24-cv-636. With the current briefing schedule, so it will likely be mid- to late July before an order is entered granting or denying the requested injunction. If this injunction is granted, it could block enforcement of the new Title IX regulations statewide in Missouri.
Illinois, on the other hand, has joined a coalition of 16 states to file an amicus brief in support of the new Title IX regulations.
While this most recent injunction in State of Kansas, et al. v. U.S. Dept. of Education et al. does not apply statewide to institutions in Missouri and Illinois, it may block enforcement by the Department of Education at individual institutions in both states. Moms for Liberty reports having chapters in both Missouri and Illinois, and Young America’s Foundation reported having contacts at more than 2,000 campuses nationwide. If a Missouri or Illinois institution is included on the lists to be provided by Young America’s Foundation, Female Athletes United and Moms for Liberty, then the injunction will prohibit the Department of Education from enforcing the new Title IX regulations at that institution.
Some institutions may already know that members of these organizations attend their institutions – for example, if there is an organized student group or there has been prior contact from the organization. Many institutions, however, will have to wait until these organizations post lists of their members’ schools on July 15. Both Young America’s Foundation and Moms for Liberty have already posted calls on social media for new members to join in order to include the new members’ schools in the injunction, so it seems likely the number of schools will grow, even after the organizations provide their lists on July 15.
Given the large number of schools that are likely to be listed by these organizations, the Department of Education will have difficulty determining where the new Title IX regulations can be enforced. In addition, the court’s order does not limit the injunction to institutions included on the July 15 lists, which means that the plaintiff organizations may continue to recruit new members, which would expand the number of institutions where the Department of Education is unable to enforce the 2024 Title IX regulations.
The court noted in its order that it is up to the Department of Education to determine “whether patchwork enforcement of the Final Rule is feasible.” The court specifically noted that the Department would be subject to sanctions should it seek to enforce the new Title IX regulations in violation of the preliminary injunction. While the Department of Education continues to defend the new Title IX regulations aggressively, with the possibility of sanctions, it is possible the Department may delay the implementation date for all institutions.
Nothing in this decision prevents an institution from continuing to comply with its own policies, or state or local laws. The injunction only applies to the Department of Education and its officials. The court’s order states 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 or in compliance with a state law may continue to prohibit discrimination on the basis of gender identity. Illinois prohibits discrimination on the basis of gender identity in public accommodations, including K-12 schools and institutions of higher education, under the Illinois Human Rights Act. Missouri courts have similarly 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.
Institutions subject to the injunction 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 and other potential 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.