VIEWPOINT: 2024 Title IX Regulations Deemed “Unlawful”

On Jan. 9, 2025, the Eastern District of Kentucky held in State of Tennessee, et al. v. Miguel Cardona, et al. that the U.S. Department of Education’s 2024 Final Rule implementing Title IX is “unlawful.” This court decision applies nationwide, including in New York state. The court determined in State of Tennessee that the final rule suffered from several legally fatal defects, including but not limited to the fact that the final rule:

• Went further than permitted by Title IX in its definition of “sex” to include gender identity;
• Inappropriately expanded the definition of “sex-based harassment” to include speech or conduct that limits a person’s ability to participate in or benefit from an educational program or activity (the prior standard required that an individual be denied the ability to participate in or benefit from an educational program or activity) ; and,
• Was so vague and overbroad that it would be difficult to predict what conduct would violate the law.

According to the Eastern District of Kentucky, the final rule violated the First Amendment and the Spending Clause and is “arbitrary and capricious” because it failed to provide a reasoned explanation for departing from its longstanding interpretation of Title IX. This is not the first time the 2024 final rule has been successfully challenged. Even before this ruling, several courts issued injunctions, resulting in the 2024 Title IX regulations having no effect in 26 states. New York school districts that have been operating pursuant to the 2024 final rule should revert to a practice that is compliant with the 2020 regulations. School districts that have adopted policies and training programs consistent with the 2024 regulations should work with legal counsel to revise these policies and training programs to be consistent with the 2020 regulations. Although the Title IX regulations were struck down because of the inclusion of gender identity in the definition of “sex,” New York school districts must continue to abide by the New York State Human Rights Law, the Dignity for All Students Act (DASA), the New York State Constitution, and school-board policies, which all include “gender identity” as a protected class. As a result, while school districts may not be required to conduct a Title IX investigation related to gender-identity issues, New York schools still have an obligation to investigate and take action to prevent any claims of bullying, discrimination, and/or harassment on the basis of gender identity (or any of the other protected classes) pursuant to DASA, the New York State Human Rights Law, the New York State Constitution, and/or board policies. It is possible that the federal Department of Education may appeal this decision and/or issue interim guidance. Bond’s school law practice will continue to monitor developments and assess the implications of this significant decision.             

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Hilary L. Moreira and Howard M. Miller are members (partners) in the Garden City office of Syracuse–based law firm Bond, Schoeneck & King PLLC. Moreira is a labor and employment law attorney who represents and counsels employers in the public and private sectors in all areas of labor and employment law. Miller, in education law, represents public school districts and private universities throughout New York; and in private-sector employment litigation, he litigates all types of employment discrimination and retaliation claims. This Viewpoint is drawn and edited from a Jan. 15 article on Bond’s website.