On January 31, 2025, the Department of Education’s Office for Civil Rights (“OCR”) issued a Dear Colleague Letter stating that OCR “will enforce Title IX under the provisions of the 2020 Title IX Rule, rather than the recently invalidated 2024 Title IX Rule… open Title IX investigations initiated under the 2024 Title IX Rule should be immediately reoriented to comport fully with the requirements of the 2020 Title IX Rule.”
Background
Title IX of the Education Amendments of 1972 (“Title IX”) is a federal civil rights law that prohibits sex-based discrimination in any school or any other education program that receives funding from the federal government. In 2020, the Title IX regulations were amended by the Trump Administration (“2020 Title IX Rule”). On April 19, 2024, the regulations were amended again by the Biden Administration, which issued a Final Rule that had been set to go into effect on August 1, 2024 (“2024 Title IX Rule”).
Prior to the effective date, several states sued the Department of Education seeking to block the 2024 Title IX Rule through an injunction. The injunction was granted and the 2024 Title IX Rule was blocked from taking effect in those states, as well as in certain schools throughout the country, including schools in Pennsylvania.
On January 9, 2025, upon consideration of competing motions for summary judgment in the case (State of Tennessee, et al. v. Miguel Cardona, et al.), the Court found that the 2024 Title IX Rule and its corresponding regulations exceeded the United States Department of Education’s authority under Title IX, violated the Constitution and were the result of arbitrary and capricious agency action.
On January 31, 2025, the Department of Education’s Office for Civil Rights (“OCR”) issued a Dear Colleague Letter stating that OCR “will enforce Title IX under the provisions of the 2020 Title IX Rule, rather than the recently invalidated 2024 Title IX Rule…open Title IX investigations initiated under the 2024 Title IX Rule should be immediately reoriented to comport fully with the requirements of the 2020 Title IX Rule.”
2024 Final Rule is Vacated by the Court in Cardona
On January 9, 2025, the Cardona court vacated the 2024 Title IX Rule and its corresponding regulations.
The Court noted that when the action of an administrative agency is found to violate the law, the remedy is vacatur of that action. The vacatur order prevents the application of the 2024 Title IX Rule and its corresponding regulations entirely. The practical effect of vacatur of an agency rule is a return to the rule that was last in effect. In this case, that is the 2020 Title IX Rule.
On January 20, 2025, after the Cardona decision, the United States Department of Education issued the following guidance on its website: “Consistent with the court’s order, the 2024 Title IX regulations and these resources are not effective in any jurisdiction.”
Dear Colleague Letter
On January 31, 2025, the Department of Education’s Office for Civil Rights (“OCR”) issued a Dear Colleague Letter confirming that the analysis in Cardona is controlling and the 2024 Title IX Rule is unlawful.
The letter further discussed an Executive Order issued by President Trump on January 20, 2025, that contradicts the 2024 Title IX Rule’s meaning of “on the basis of sex.” The Executive Order entitled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” ordered all agencies and departments to “enforce all sex-protective laws to promote [the] reality” that there are “two sexes, male and female,” and that “[t]hese sexes are not changeable and are grounded in fundamental and incontrovertible reality.”
The letter goes on to say that President Trump’s interpretation of the law governs, and Title IX must be enforced consistent with President Trump’s Executive Order.
Bottom Line For Schools
The 2024 Title IX Rule is invalid. The OCR will enforce the 2020 Title IX Rule. School Districts must ensure that their policies are compliant with the 2020 Title IX Rule and related regulations. State law continues to provide protections against discrimination for LGBTQ+ individuals.
School Districts should consult with their solicitors to understand what legal protections remain in the absence of the 2024 Title IX Rule.
