Title IX Implementation of 2024: What You Need to Know Today

Holland & Knight previously explained how a federal district court in Kansas’s emergency injunction against the U.S. Department of Education’s (Department’s) enforcement of the Title IX Regulations of 2024 has impacted schools across the country. (See Holland & Knight’s previous alert, “Title IX Regulations of 2024 Impact Schools Nationwide,” July 18, 2024.)

This Holland & Knight alert provides an August 1, 2024 update on the Department’s latest court decisions and positions, and discusses their impact on implementation of the 2024 regulations.

Last changes

As of July 18, 2024, the Kansas court clarified its position that its order prohibiting the Department from implementing, adopting, or enforcing the 2024 regulations regarding the list of schools, colleges, and universities attended by members of certain nonprofit associations could be expanded to include more institutions if the associations’ membership lists were expanded to include students attending a longer list of schools. The expanded membership lists were filed with the Kansas court on July 26, 2024, and July 31, 2024, adding 10 additional postsecondary schools to the list. The Department maintains and updates the list on its website. Institutions should expect additional postsecondary schools to be added to the list unless the United States Court of Appeals for the Tenth Circuit—which is considering an appeal of the district court’s injunction—vacates or limits the scope of the order.

In other states, federal district courts in Missouri and Oklahoma, on July 24, 2024, and July 31, 2024, respectively, ordered the Department to refrain from implementing, enacting, and enforcing the 2024 regulations collectively against Arkansas, Iowa, Missouri, Nebraska, North Dakota, South Dakota (Missouri case), and Oklahoma. On July 30, 2024, a federal district court in Alabama denied a motion for a preliminary injunction filed by Alabama, Florida, Georgia, and South Carolina, but on July 31, 2024, the United States Court of Appeals for the Eleventh Circuit issued an emergency injunction. In doing so, the Eleventh Circuit held that the Department was temporarily “enjoined from enforcing the final rule … pending further order by this Court,” without expressly stating whether the injunction was limited to those four states. The Department argued in a subsequent letter that the district court’s injunction should be limited to those four states and not be construed as a nationwide injunction because the plaintiffs did not seek broader relief, but the court had not clarified that issue as of the time of this alert.

The Department, for its part, hosted a webinar on the morning of August 1, 2024, in which it emphasized that it will generally enforce the 2024 regulations as of August 1, 2024, in the 24 states where the orders are not in effect, as well as the District of Columbia and Puerto Rico. The Department also stated its position that in the 26 states and with respect to schools where enforcement of the 2024 regulations is suspended, the 2020 regulations will continue to apply. Written confirmation of these positions is included in the Department’s Pointers for Implementation guidance document, issued and updated as of July 31, 2024. Although the webinars and guidance documents are not legally binding, they should provide a basis for challenge if the Department ever takes a contrary position in the context of administrative enforcement. With respect to the pending litigation, the Department noted that it had appealed all of the orders, argued that the Eleventh Circuit’s decision only ordered a stay of enforcement in Alabama, Florida, Georgia, and South Carolina (but not nationally), and indicated that it had asked the U.S. Supreme Court to intervene to allow the Department to enforce certain aspects of the 2024 regulations even in states and schools where the orders apply. To date, the U.S. Courts of Appeals for the Fifth and Sixth Circuits have issued rulings that did not support the Department’s positions. It is unclear when additional appellate court rulings might be issued.

Consequences

With so many unknowns in mind, it’s worth starting with what is already known at this stage, namely:

The department cannot require schools subject to the 26 state orders or listed in lists filed with the Kansas court to comply with the 2024 regulations. At this time, the department has indicated it will not attempt to do so unless further legal changes allow it.
The Department expects that schools covered by the order will continue to follow the policies and procedures adopted to comply with the 2020 regulations.
The Department expects that schools will not be subject to an order requiring them to comply with the 2024 Regulations, which will come into force on 1 August 2024.
Legal developments in this area are fluid and change daily. The Department is challenging the orders, and further developments will likely provide more definitive guidance.

Notwithstanding the foregoing, some colleges and universities on the Kansas court list are exploring voluntary implementation of 2024-compliant policies and procedures that they have developed over the past several months, to the extent they can do so without conflicting with the Department’s position that schools on the list should continue to follow 2020-compliant policies and procedures. Institutions exploring this approach should work closely with their legal counsel to identify areas of overlap and conflict and to add appropriate language to their new policies and procedures that acknowledges the fluidity created by the legal changes summarized here and indicates how the institution will determine which policies and procedures will apply in the event of a covered misconduct complaint.