Dive Brief:
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The Biden administration's final Title IX rule protecting LGBTQ+ students is temporarily blocked in at least 26 states after the 11th U.S. Circuit Court of Appeals on Tuesday issued an administrative injunction the evening before the rule's Aug. 1 implementation date. The Education Department will enforce the 2020 rule in those states.
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The temporary pause applies at least to Alabama, Florida, South Carolina and Georgia, meaning states that challenged the department's rule in the weeks following its release in April have won the first round in a string of legal proceedings to come.
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The appellate court's order reversed a district court's decision allowing the final Title IX rule to go into effect in four Southern states. The 11th Circuit joins at least two other appellate courts that have dealt legal blows to the final rule.
Dive Insight:
Prior to the 11th Circuit's decision, Judge Annemarie Carney Axon, appointed under the Trump administration to the U.S. District Court for the Northern District of Alabama, ruled on Tuesday that the four Southern states seeking to block the rule failed to show "they will suffer immediate irreparable injury" from being unable to enforce their state laws related to parental rights and sex-separation in sports and bathrooms.
Axon's decision broke from a handful of other federal district judges' decisions in recent weeks that paused the rule in at least 21 other states at the time. However, Alabama Attorney General Steve Marshall said in a statement that he and the coalition of three other states filed an appeal of Axon's decision with the 11th Circuit later that same day.
The 11th Circuit's decision left unclear whether it was blocking the rule nationwide or just in the four states that appealed to the court. In response, the department filed a document Wednesday saying it interpreted the order to only block Title IX’s implementation in the four states that appealed.
The 11th Circuit's decision has sowed some confusion in the education community. "I want to make sure people are aware that there is some concern in the field that the 11th Circuit issued a nationwide injunction," said Jackie Gharapour Wernz, a consultant for Education Civil Rights Solutions and a board member for the National School Attorneys Association.
Wernz said the association is currently discussing the issue. "Their order did not say it was doing so, but also did not explicitly limit the injunction to the four states at issue."
"It's a very fluid legal environment still," said Catherine Lhamon, assistant secretary of education for civil rights at the U.S. Department of Education, in a webinar Thursday. "We received yet another injunction last night, and that latest injunction, I understand some people may have some confusion about it."
Lhamon says she hopes the status of the injunctions may change overtime, but that the department will be moving forward with enforcing the rule in the remaining 24 states where the rule is still in effect.
The final rule has hit numerous roadblocks since its release in April.
Conservative states have filed lawsuits challenging the rule, resulting in several injunctions blocking it in various parts of the country. Along with statewide injunctions, one ruling has blocked the regulations from taking effect in over 400 specific schools and 600 colleges, including those located in historically liberal states like California.
Lawyers for plaintiffs in those cases argued that the department overstepped its authority in crafting the rule, among other claims. Judges granting temporary injunctions decided that the plaintiffs were likely to succeed in their arguments, and that moving forward with the rule would cause more harm than good.
In some areas with injunctions, the department asked federal district and appellate courts to allow it to continue to enforce the uncontested parts of the regulations. Those portions include changes to Title IX timelines and procedures that Title IX experts say are beneficial for K-12 settings.
However, the courts have so far denied the department's requests to enforce the uncontested parts of the rule.
Last week, the department took its requests to the U.S. Supreme Court. U.S. Solicitor General Elizabeth Prelogar asked the court to review preliminary injunctions arising out of cases in Louisiana and Tennessee after the 5th and 6th Circuits denied the administration's request to continue to enforce portions of the rule.
The high court, typically in recess around this time, still regularly releases orders on urgent matters, called a "shadow" or "emergency" docket. However, as of Aug. 1, it has not yet decided on the department's requests to narrow the injunctions.
Prelogar blamed the patchwork rollout of the rule on the federal courts, saying judges took a "blunderbuss approach to preliminary relief” that is “both wrong and consequential.”
However, a district court judge and Title IX lawyers have pointed out that the department could have chosen to delay the rule.
In a decision earlier this month rejecting one of the department’s requests to implement portions of the rule, District Judge John Broomes said the challenges to enforcement were of the department’s own making. Broomes said the Education Department “maybe” should delay its Aug. 1 enforcement date to avoid a patchwork of Title IX policies nationwide.
Meanwhile, Title IX coordinators and lawyers in states with injunctions have waited on the department for guidance on how to approach the rule, especially where its LGBTQ+ protections conflict with state and local laws. On Thursday, the agency clarified in a webinar that it would implement the 2020 rule in 26 states where it believes the rule to be blocked.
