Different School of Thought: 15 States Sue to Challenge 2024 Title IX Regulations

Quick Hits

• On April 29, 2024, three separate lawsuits were filed challenging the 2024 Title IX regulations: (1) Louisiana, Mississippi, Montana, and Idaho filed one lawsuit in the Western District of Louisiana; (2) Alabama, Florida, Georgia, and South Carolina filed a second lawsuit in the Northern District of Alabama; and (3) Texas filed a third lawsuit in the Northern District of Texas.
• On April 30, 2024, Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia filed a fourth lawsuit in the Eastern District of Kentucky.
• Over the next three months, these lawsuits will impact how institutions prepare for the 2024–2025 academic year.

April 29, 2024, Lawsuits

On April 29, 2024, the State of Louisiana, Louisiana Department of Education, the State of Mississippi, the State of Montana, and the State of Idaho filed a lawsuit against the U.S. Department of Education, the Secretary of Education, the U.S. Department of Education’s Office for Civil Rights, the Assistant Secretary for Civil Rights, the U.S. Department of Justice, and the Attorney General of the United States challenging the regulations and seeking both declaratory and injunctive relief (State of Louisiana v. U.S. Department of Education). The plaintiffs assert five different claims in their lawsuit, including that the regulations are (1) contrary to and in excess of statutory authority under the Administrative Procedure Act (APA), (2) in violation of the Spending Clause, (3) an unlawful exercise of legislative power under Article I of the U.S. Constitution, (4) arbitrary and capricious in violation of the APA, and (5) in violation of the procedural requirements of the APA.

• The APA requires that courts hold as unlawful and set aside any agency action that is “not in accordance with law” or is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” The plaintiffs assert that Title IX gives defendants no authority to, among other things, redefine terms like “sex” to include separate concepts, such as “gender identity,” or compel speech by requiring institutions to police employees’ and students’ pronoun usage. The plaintiffs also assert that “hostile environment harassment” is defined in such a way so as to prohibit “speech expressing critical views about the concept of gender identity.” The plaintiffs go so far as to argue that the final rule “would flip Title IX on its head by likely causing discrimination against women rather than prohibiting it.” (Emphasis in original.) In addition, the plaintiffs claim that the regulations violate the APA for two other reasons: (1) they fail the arbitrary-and-capricious review standard because, for example, they are internally inconsistent, fail to define key terms, and disregard evidence submitted; and (2) the Department did not provide “interested persons an opportunity to participate in the rule making.”

• The plaintiffs also contend that the regulations violate the Spending Clause power outlined in the U.S. Constitution, Article I, § 8, Clause 1, because they impose conditions that (1) are not “unambiguously” clear in Title IX, (2) are unrelated if not opposed to the federal interest, (3) will induce institutions to violate constitutional rights, and (4) will violate the plaintiffs’ sovereignty.

• In addition, the plaintiffs allege that the regulations are an impermissible exercise of legislative power in violation of the U.S. Constitution.

The plaintiffs request that the U.S. District Court for the Western District of Louisiana (in the Fifth Circuit) declare the regulations to be in violation of the laws identified above, vacate the regulations as unlawful, postpone the effective date and stay the regulations, and prohibit the defendants from enforcing the regulations.

In a separate lawsuit also filed on April 29, four additional states (Alabama, Florida, Georgia, and South Carolina), along with four national organizations, sued the U.S. Department of Education and the Secretary of Education in the Northern District of Alabama (in the Eleventh Circuit).

As in State of Louisiana v. U.S. Department of Education, the plaintiffs in State of Alabama v. Cardona,claim the Title IX regulations go beyond the statutory language in Title IX by redefining “sex” to include gender identity and sexual orientation. The plaintiffs also argue that the regulations redefine “sex-based harassment,” eliminating the requirement that it be “severe and pervasive” (plaintiffs’ emphasis) to be actionable. Finally, the plaintiffs target the regulations’ elimination of certain procedural due process safeguards for the accused.

The lawsuit claims that the final rule violates the APA because these changes exceed the Department’s authority and are arbitrary and capricious. The plaintiffs ask the court to declare the regulations illegal and vacate them, stay the effective date, and issue an injunction against enforcement of the rule.

Also on April 29, the State of Texas (in the Fifth Circuit) filed its own lawsuit against the United States, the Secretary of Education, the U.S. Department of Education, the Assistant Secretary for Civil Rights, and the Deputy Assistant Secretary for Enforcement, challenging the final rule. In State of Texas v. United States, Texas asserts that the Department was misguided in its reliance upon Bostock v. Clayton County to support a “redefinition of sex discrimination.” Similar to State of Louisiana v. U.S. Department of Education, Texas contends that the regulations violate the APA as they exceed the Department’s statutory authority, are not in accordance with law, and constitute arbitrary and capricious agency action.

April 30, 2024, Lawsuit

On April 30, 2024, the State of Tennessee, the Commonwealth of Kentucky, the State of Ohio, the State of Indiana, the Commonwealth of Virginia, and the State of West Virginia also filed a lawsuit challenging the Title IX regulations. This case was filed in the U.S. District Court for the Eastern District of Kentucky (in the Sixth Circuit).

The plaintiffs sued the U.S. Department of Education for nonmonetary relief under the APA in State of Tennessee v. Cardona, for allegedly violating Title IX by implementing new regulations that require institutions to protect and promote students’ “gender identity” and other “sex characteristics,” which the plaintiffs argue could potentially invalidate sex-based sports policies.

The plaintiffs also argue that the regulations exceed the Department’s authority and interfere with the U.S. Congress’s power to pass nationwide laws. The plaintiffs seek the court’s intervention to stay the regulations’ effective date, enjoin their enforcement, and ultimately vacate and set the regulations aside.

For an analysis of the Title IX regulations, please see our four-part series, including, “2024 Title IX Regulation Update, Part I: Grievance Procedures for Resolving Complaints of Sex Discrimination and Sex-Based Harassment,” “2024 Title IX Regulation Update, Part II: Section 106.2 Definitions,” “2024 Title IX Regulation Update, Part III: Section 106.44—Recipients’ Duty to Address Sex Discrimination,” and “2024 Title IX Regulation Update Part IV: Miscellaneous Provisions.”

Ogletree Deakins’ Higher Education Practice Group will continue to monitor developments related to the litigation challenging the 2024 Title IX regulations and provide updates on the Higher Education and State Developments blogs as additional information becomes available.

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