Additional Title IX Regulation Injunctions Just Before the Implementation Deadline

By: Kylie Stryffeler, Erin Butcher, & Jivanto Van Hemert*

In the days just before the August 1, 2024 implementation deadline, a flurry of judicial activity changed the landscape of new Title IX regulation implementation yet again. As of the August 1, 2024 implementation deadline, 26 states[1] and an additional list of hundreds of individual institutions have been subject to preliminary injunctions preventing the Department of Education from enforcing these new regulations as several separate cases proceed to trial in federal courts. These temporary orders, across 7 separate cases, apply to the regulations in their entirety despite the challenges centering on rather limited provisions of the amended regulations.

On July 31, 2024, shortly before the August 1, 2024 implementation deadline, the Eleventh Circuit Court of Appeals issued a stay enjoining the Department of Education from enforcing the updated regulations pending further order from the Court.  This injunction impacts Florida, Alabama, South Carolina, and Georgia.

The Eleventh Circuit’s injunction came after an Alabama district judge denied the injunction the day before, clarifying that an injunction is extortionary relief that carries a heightened burden that the plaintiffs had not met.  

Also on July 31, 2024,  the District Court for the Western District of Oklahoma issued an injunction for the State of Oklahoma, in which the Court nodded to the likely necessity for the Supreme Court to take up this issue prior to a comprehensive resolution. The Court went on to hold the State was likely to succeed on the merits of each of their claims that the Department of Education’s interpretation of “sex” exceeds its statutory authority, the major questions doctrine would discourage adoption, the constitutional claims that the Final Rule likely violates the First Amendment and Spending Clause, and that the Department acted in an arbitrary and capricious manner.

As we have previously explained, these decisions add to several recent related judicial developments where injunctions have impacted a number of states, individual institutions, and garnered applications to the Supreme Court for partial stays. It is unlikely that the courts will provide more definitive guidance prior to the start of the academic year. Thus far, the Department of Education has declined to delay the effective date despite Kansas District Court Judge John Broomes’ rather direct suggestion to do so. Thus, institutions—including those currently impacted by an injunction— may be expected to comply with the new regulations in short order at the conclusion of these cases. The Department acknowledged a limited scope of the injunctions to date and released implementation resources for institutions that were not enjoined on July 24, 2024.

Our team continues to follow these cases closely. Subscribe to Bricker Graydon insights & resources to receive updates in as these cases progress.

*Jivanto Van Hemert is not yet licensed to practice law.

[1] Louisiana, Montana, Mississippi, Idaho, Tennessee, Kentucky, Ohio, Indiana, Virginia, West Virginia, Alaska, Kansas, Utah, Wyoming, Texas, Arkansas, Missouri, Iowa, Nebraska, North Dakota, South Dakota, Alabama, Florida, Georgia,  South Carolina, and Oklahoma.