Two Federal Courts Issue Preliminary Injunctions Against Title IX Final Rule in Certain States

Two federal courts have granted preliminary injunctions enjoining the Department of Education (“Department”) from implementing or enforcing the new Final Rule, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance in certain states.

The States of Louisiana, Mississippi, Montana, and Idaho filed suit in the Western District of Louisiana, and filed motions for preliminary injunction and motions for stay to prevent the Final Rule from taking effect on August 1, 2024.  The States of California, Colorado, Delaware, Hawaii, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and the District of Columbia filed an amici curaie brief opposing the motions.  The court found the plaintiffs were likely to succeed on the merits that the Final Rule is contrary to the Administrative Procedures Act, violates the Free Speech Clause and the Free Exercise Cluse of the First Amendment, violates the Spending Clause, and is arbitrary and capricious.  The court also stated it showed “the abuse of power by executive federal agencies in the rulemaking process.” The court granted the motion for preliminary injunctions and enjoined and restrained the Department from implementing or enforcing the Final Rule and enjoined and restrained the Final Rule from going into effect on August 1, 2024, pending additional orders from the court.  This injunction only applies to the States of Louisiana, Mississippi, Montana, and Idaho.

The States of Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia filed suit in the Eastern District of Kentucky to enjoin and invalidate the Final Rule.  The Christian Educators Association International and a fifteen-year-old female student identified as “A.C.” were allowed to file an Intervenor Complaint.  In its opinion, the Eastern District of Kentucky stated “the Department would turn Title IX on its head by redefining ‘sex’ to include ‘gender identity.’”  The court concluded the Department exceeded its authority to promulgate regulations pursuant to Title IX because its interpretation conflicts with Title IX’s plain language.  The court also stated there were “serious First Amendment implications” with the Final Rule’s definition of sexual harassment, which the court determined could require educators to use student’s preferred pronouns, even if doing so conflicted with the educator’s own religious or moral beliefs.  The court further concluded the Department’s actions were arbitrary and capricious, stating the Department had not provided a reasoned explanation for departing from its previous interpretations or for leaving in place regulations that conflicted with the new requirements regarding gender-identity.

The court granted the motions for a preliminary injunction/stay and enjoined and restrained the Department from implementing or enforcing the Final Rule with regard to the States of Tennessee, Kentucky, Indiana, Virginia, and West Virginia, and to Christian Educators Association International and A.C. in those states.

Although the preliminary injunctions apply only to the states who filed the lawsuits, they raise uncertainty regarding the Final Rule moving forward.  There is likely to be more litigation and more confusion regarding what rules apply to Title IX investigations until the cases are resolved.  If you are accused of sexual harassment or misconduct at a Washington school or university, an experienced Washington Title IX defense attorney can help you understand and protect your rights.  Set up a consultation with Blair & Kim, PLLC, at (206) 622-6562.


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