Education Litigation Update - February 2025
Sign Up for PublicationsKentucky Federal Court Vacates 2024 Updates to Title IX
Title IX is a landmark federal law that prohibits sex-based discrimination in educational institutions. Enacted in 1972, the law has undergone numerous amendments over the years and, more recently, has become a focal point of political debate with constantly changing standards. Title IX received a lot of attention in 2024 and so far in 2025 after the Biden Administration issued a new amendment, expanding its protection. A legal battle followed, leaving educational institutions confused, frustrated, and wondering about next steps in Title IX compliance.
2024 Amendment to Title IX
On April 29, 2024, the Department of Education (“DOE”) issued the Title IX Final Rule (the “2024 Amendment”), which, most notably, broadened Title IX protections by including “gender identity” as prohibited discrimination on the basis of sex. In particular, this change expanded the definition of sexual harassment to encompass sex stereotyping, gender identity, and gender expression discrimination. The 2024 Amendment also offered more protections for pregnant and postpartum students, provided stronger language regarding retaliation, and set out new procedural requirements for the investigation and adjudication of Title IX complaints. The 2024 Amendment went into effect on August 1, 2024.
Injunctions Block Enforcement of the Final Rule
The 2024 Amendment was controversial upon enactment and immediately drew legal challenges from twenty-six states. The chief objection was the rule’s inclusion of gender identity in the definition of sex discrimination. These states obtained federal injunctions that allowed them to block enforcement of the 2024 Amendment.
In August 2024, the DOE sought emergency relief from the U.S. Supreme Court partially to curb the injunctions, but the request was denied on August 16, 2024. In a short opinion, the Court rejected the DOE’s argument that the three challenged provisions that newly define sex discrimination to cover gender identity should be severed, allowing the other unchallenged parts of the rule to go into effect.
As a result of the injunctions and the DOE’s unsuccessful attempt at scaling them back, a patchwork enforcement of Title IX was implemented whereby the twenty-six states (and certain schools nationwide) that challenged the 2024 Amendment were to adhere to the 2020 Title IX Regulations, whereas the other twenty-four states were to comply with the 2024 Amendment.
State of Tennessee v. Cardona Ruling
Piecemeal enforcement of Title IX continued until the United States District Court for the Eastern District of Kentucky vacated the 2024 Amendment on January 9, 2025 in State of Tennessee v. Cardona, No. 2:24-cv-00072-DCR (E.D. Ky. Jan. 9, 2025). This ruling follows the Eastern District of Kentucky’s earlier June 17, 2024 decision granting an injunction to block enforcement of the 2024 Amendment. The court granted summary judgment against the DOE and vacated the 2024 Amendment on three bases:
First, the court held the DOE exceeded its authority in expanding the scope of prohibited discrimination to include gender identity, rejecting the DOE’s argument that the U.S. Supreme Court decision in Bostock v. Clayton County Ga., 590 U.S. 644 (2020) supported an expanded definition of discrimination “on the basis of sex.” The court found the Bostock decision, which involved a transgender employee, is limited to employment discrimination under Title VII and does not apply to Title IX.
Second, the court determined that the 2024 Amendment was unconstitutional because its new definitions would compel schools and teachers to “use names and pronouns associated with a student’s asserted gender identity” in violation of the First Amendment. It also found the new definitions were “so vague” that educational institutions would “have no way of predicting what conduct would violate the law.”
Third, the court found the 2024 Amendment was arbitrary and capricious, reasoning that the DOE had not provided a sufficient basis for its Title IX changes.
Implications
The court’s decision in Cardona has several significant implications for educational institutions. Critically, now that the 2024 Amendment has been vacated nationwide, the pre-existing 2020 version of Title IX is re-instated. Therefore, it is imperative that educational institutions ensure their policies are compliant with the 2020 Title IX regulations and that staff is trained to follow and implement those regulations. Educational institutions should seek legal advice on how to proceed with cases involving Title IX misconduct between August 1, 2024, when the 2024 Amendment went into effect, and January 9, 2025, when the 2024 Amendment was vacated. They should also consult a lawyer on whether to keep certain elements of their 2024 policies.
The next major implication is that the Cardona decision held that the Supreme Court’s Bostock decision, which provides that Title VII’s protections against sex discrimination apply to gender identity and sexual orientation, does not apply to Title IX. This places educational institutions in the unusual situation where transgender faculty and staff are protected from discrimination under Bostock, but transgender students are not similarly protected. Institutions must be conversant in both sets of laws and should seek legal assistance in navigating these issues. The Bostock decision will likely be further scrutinized and challenged under the Trump Administration, so educational institutions should monitor any developments.