Dive Brief:
- A federal judge on Thursday temporarily blocked the Biden administration’s new Title IX rule from taking effect in Texas, making it one of at least 15 states where the courts have put the regulations on pause.
- The U.S. Department of Education’s rule — which is just shy of three months old — expands Title IX’s protections to LGBTQI+ students and employees. It also reverses several Trump-era regulations, such as no longer mandating live hearings in sexual misconduct cases.
- Texas sued the Education Department in April, arguing that the rule’s provisions violate federal law. U.S. District Judge Matthew Kacsmaryk, a Trump appointee, agreed in his 32-page opinion on July 11, writing that the state will likely prevail in its lawsuit.
Dive Insight:
The Biden administration’s rule is slated to take effect Aug. 1, but a flurry of lawsuits have fractured the Title IX landscape.
A handful of separate lawsuits have now successfully petitioned federal judges to temporarily block the regulations from taking effect in at least 14 other states: Alaska, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Utah, Virginia, West Virginia and Wyoming. The Biden administration has appealed those decisions in at least three cases.
A spokesperson for the Education Department said the agency is reviewing Thursday’s ruling.
“The Department crafted the final Title IX regulations following a rigorous process to realize the non-discrimination mandate of Title IX,” the department spokesperson said in an email. “The Department stands by the final Title IX regulations released in April 2024, and we will continue to fight for every student.”
In three other cases that have led to the rule being temporarily blocked, the Education Department has requested that the courts only pause the parts of the regulations that have been challenged in court. However, those motions have already been denied in two of those cases — the lawsuits led by Louisiana and Tennessee.
Title IX prohibits sex-based discrimination at federally funded colleges and K-12 schools. The Education Department’s new Title IX regulations expand these protections to LGBTQI+ students and employees by barring discrimination based on sexual orientation and gender identity.
This change drew praise from LGBTQ+ advocates — who said the regulations provided needed protections — but sparked outrage among conservative groups.
In the preamble to the new Title IX regulations, the Education Department cited the U.S. Supreme Court's 2020 ruling in Bostock v. Clayton County on Title VII employment law. That 6-3 decision found that sex-based protections under Title VII prohibit employers from terminating workers because of their sexual orientation or gender identity.
In its complaint seeking to stop the new rule, Texas argued that the reasoning in the landmark Bostock ruling doesn’t apply to Title IX.
Kacsmaryk agreed, writing for the court that the Biden administration’s final rule “inverts the text, history, and tradition of Title IX” and doesn’t adequately explain why an employment case should impact Title IX for colleges and K-12 schools.
Congressional lawmakers “peppered Title IX with explicit references to the biological and binary categories of two sexes with repeated references to ‘one sex’ and ‘both sexes,’” Kacsmaryk added in his ruling for the U.S. District Court for the Northern District of Texas.
Texas also takes issue with how colleges must address sexual misconduct under the new regulations, saying they amount to a “reduction of due process protections for those accused of misconduct.”
The new rule allows colleges to use a single-investigator model, in which one person serves as both the factfinder and decision-maker in a sexual misconduct case. It also no longer requires live hearings where the accused and the accuser can cross-examine each other through advisers.
With these and other changes, the final rule “eviscerates procedural safeguards for the Title IX grievance process,” Kacsmaryk wrote.
Texas would suffer “irreparable injury” without a preliminary injunction keeping the rule from taking effect, Kacsmaryk wrote. If the state refused to comply with the new rule, it would need to come up with $13 billion to cover the resulting loss in federal funding for its schools and colleges, according to the ruling.
On the other hand, abiding by the new Title IX rule would result in “irreparable compliance costs,” Kacsmaryk wrote. And colleges would likely be forced to pay this price twice, he wrote.
Because the rule is likely to be struck down, Kacsmaryk wrote, Texas higher education institutions would need to reverse the changes, resulting in a “double-compliance cost.”
