On January 9, 2025, the U.S. District Court for the Eastern District of Kentucky issued an opinion and order that vacated the 2024 Title IX regulations. This means that the 2024 regulations will likely no longer apply. Recall that since the August 1 effective date of the Biden regulations, implementation has been subject to a patchwork of injunctions on the state level and institution-by-institution based on whether a school enrolls members of the plaintiff organizations in one of the lawsuits
The Court decided that the Final Rule and its corresponding regulations “exceed the Department’s authority under Title IX, violate the Constitution, and are the result of arbitrary and capricious agency action.”
In its opinion the Court summarizes the plaintiffs’ challenges to the Final Regulations, including the de minimis harm standard, the inclusion of sexual orientation and gender identity in the definition of sex, the geographic breadth of response obligations to sexual harassment, and the definition of sexual harassment.
The Court dismisses severance because the challenged provisions “taint the entire rule.” The Court discussed the idea of severance—that would be vacating only the challenged provisions of the regulations and letting the other sections remain in force. For example, the sections modernizing and expanding the protections for students experiencing pregnancy or related conditions could remain, or the training obligations.
The Court notes that vacating the Final Rule would not have a disruptive effect due to the many injunctions of the rule.
The vacatur order is different from the various preliminary injunctions that have been in place since the summer; vacatur “takes the unlawful agency action ‘off the books’” as per the Court. The preliminary injunctions temporarily kept the Department from enforcing the rule in certain states and schools.
What don’t we know? First, might the government appeal? And would the appeals court make a change? If not, how soon will OCR expect institutions to unwind their 2024 changes to become compliant once again with the previous regulations? Perhaps the Department of Education will issue a statement and some guidance in response to the Court’s order in the coming days.
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Here is the decision.