What the Title IX Injunctions Mean for Schools and Students This Fall

By: Ashling A. Ehrhardt and Sydney Smith Forquer

While the new Title IX regulations are slated to take effect on Aug. 1, over 670 universities and 400 K-12 schools are facing injunctions and their resulting uncertainty about what to do next. The new rulemaking, released in April, generally reworks the procedural requirements for how schools address Title IX complaints and allows schools greater latitude in deciding whether to offer live hearings. While these procedural changes make up the bulk of the new regulation, the change in the definition of “sex discrimination,” which now includes sexual orientation, gender identity, and pregnancy and related conditions, has been the basis for numerous lawsuits brought by states and interest groups.

In 15 states, federal courts have granted injunctions concerning the enforcement of the new rules by the Department of Education (ED) and the implementation by colleges and universities. In addition, Judge John Broomes of the U.S. District Court for the District of Kansas granted an injunction to Moms for Liberty, Young America’s Foundation and Female Athletes United blocking the enforcement of the new Title IX rules in any school attended by the children of the interest groups’ members. While the groups had initially sought an injunction that applied to every county where members lived, Broomes’ seemingly more tailored injunction specifically noted that it applies to current and prospective members, meaning as the groups gain new members, the list of enjoined schools can grow. There are currently over 670 universities enjoined by the overlapping injunctions, including local colleges and universities.

In the wake of these court orders, the Department of Justice (DOJ) asked the Supreme Court on July 22 to take emergency action to restore portions of the Title IX rule other than the contested definition of sex discrimination. The DOJ argued that the injunctions currently in place, blocking the entirety of the rule, are burdensome. This burden extends both to the ED—currently required to enforce two separate sets of federal regulations depending on the enjoinment status of each particular school—as well as to universities and colleges that have been spending considerable time and expenditure rewriting their own policies to comply with the new rules. In its petition, the DOJ relied on Justice Neil Gorsuch’s words in an emergency action concurrence from earlier this year, noting “lower courts would be wise to take heed” that “the foundational rule that any equitable remedy they issue must not be more burdensome to the defendant than necessary to redress the plaintiff’s injuries.” See Labrador, Attorney General of Idaho v. Poe, 601 U.S. ___ (2024) (Gorsuch, J., concurring).

The DOJ previously asked the U.S. Court of Appeals for the Sixth Circuit to issue a similar order limiting the injunctions in cases affecting Tennessee, Indiana, Kentucky, Ohio, Virginia and West Virginia, which the Sixth Circuit denied in a 2-1 panel ruling. If the Supreme Court were to limit the injunctions to just the contested definition, colleges and universities would be able to move forward with their new policies and simply use the prior existing definition of sex discrimination while the matters move forward to adjudication.

While this may appear to be an easy switch, this does not account for the fact that new staff may not be familiar with the old policies and schools may have restructured their Title IX offices for the implementation of the 2024 policies. Further, the 2020 Title IX rules require that formal complaints not ending in informal resolution include a live hearing. This process requires much time and resources for preparation and scheduling, in addition to the procurement of a panel of decision-makers. Colleges and universities may not have the staff available and may need to hire external investigators, advisers and hearing officers, which can impose a financial burden.

For those universities enjoined, the prospect of having to prepare staff for two different policies and potentially enforcing completely different rules depending not on the school year a complaint is filed, but instead on the injunction status during a particular week is burdensome. This prospect is also confusing for the students and staff who the Title IX rules are supposed to protect—not knowing what the status of enforcement is at their school without convoluted research of court cases taking place in different states. These considerations do not address the possibility that a school’s injunction status could change overnight if the student transfers or withdraws.

If enjoined, schools do not have the option of simply moving forward with their 2024 Title IX policies. Unless the new policies opt to keep provisions that are consistent with the 2020 rules such as a live hearing, which is optional under the 2024 rules, any decisions made under enjoined policies risk being overturned upon appeal or a challenge in court by the parties. Schools have a great interest in ensuring the decisions and actions that occur during this uncertain time remain enforceable, and that they are not placing parties in the position to have to redo Title IX investigations, which can be traumatizing to the parties. While it is hard to discern exactly what difficulties schools will face in the wake of changing injunctions, it is clear that the sooner this issue is resolved, the better for both the schools and the students the Title IX rules are meant to protect. Then the collective Title IX world can say, “I’ve a feeling we’re not in Kansas anymore.”

Reprinted with permission from the August 2, 2024 edition of “The Legal Intelligencer” © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.