On January 9, 2025, a federal district court vacated the 2024 Title IX regulations nationwide. State of Tennessee v. Cardona, 2:24-cv-00072 (E.D. Ky. 2024). The court determined that “the entire Final Rule and corresponding regulations are invalid and must be “set aside” by a vacatur order under the Administrative Procedure Act. Because this order takes the 2024 Title IX regulations “off the books,” they no longer apply to school districts and other covered entities. This order differs significantly from previous federal court decisions, which only prohibited the U.S. Department of Education from enforcing the 2024 Title IX regulations instead of vacating them, and only against certain states and/or schools.
The court based its decision on several factors, including determinations that the U.S. Department of Education exceeded its statutory authority by expanding “on the basis of sex” to include gender identity, that the 2024 Title IX regulations violate the First Amendment and the Spending Clause of the Constitution, and that the regulations are arbitrary and capricious.
The court addressed facilities use, including bathrooms, toilets, showers and locker rooms in its analysis of the Department’s statutory authority and in determining the regulations are arbitrary and capricious. Specifically, the court determined a “glaring inconsistency” exists between the 2024 Title IX regulations and the separation permitted by Title IX (social fraternities and sororities and living facilities, for example.)
The court also addressed speech regarding gender issues and the use of pronouns in its First Amendment analysis. The court determined the plaintiffs reasonably feared that “teachers’ (and others’) speech concerning gender issues or their failure to use gender-identity-based pronouns would constitute harassment” under the 2024 Title IX regulations. According to the court, “the First Amendment does not permit the government to chill speech or compel affirmance of a belief with which the speaker disagrees in this manner.”
As a result of this decision, we recommend school districts review Board policies, administrative guidelines and practices related directly or indirectly to Title IX, anti-harassment and bullying prevention. To ensure consistency with any legal developments resulting from the Presidential Transition on January 20, 2025, school districts may choose to temporarily pause revisions until that time.
Buelow Vetter will continue to provide updates regarding this decision, other pending litigation, and anticipated Executive Orders related to Title IX. Meanwhile, please do not hesitate to contact your Buelow Vetter attorney with questions regarding this Legal Update or to discuss the implications for your school district.
