Four Years in the Making – And Gone in One Lower Court Ruling!
Posted on February 14th, 2025
by Dr. Kathleen Conn
For a statute with a concise statement of thirty-seven words, Title IX has had a long history of interpretations since its passage with the Education Amendments of 1972: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Over the years, the statute’s brevity has demanded expansion and explanation. However, the latest attempt to “explain” Title IX was an intentional (and successful) attempt to vacate the most recent Title IX Regulations, Title IX 2024, which is forcing the Department of Education (DOE) to revert to the previous “one-size-fits-all” version, Title IX 2020 of the Trump administration.
When the Biden administration took over in 2021, President Biden immediately published several Executive Orders relating to Title IX’s protection for gender identity and gender orientation. The new Secretary of Education Miguel Cardona announced fifty years to the day on which Title IX had been enacted, June 23, 2022, that the Department of Education (DOE) would be issuing a Notice of Proposed Rulemaking (NPRM) for new Regulations for Title IX.
The new Rule was published in the Federal Register on April 29, 2024, four years after Title IX 2020 had been enacted.
Although Title IX 2024 was scheduled to take effect nationwide on August 1, 2024, cadres of 20-odd states, mostly the so-called “red states,” in June and July of 2024 began suing for preliminary court injunctions to stay the enactment of the parts of Title IX 2024 affording protections for students based on gender identity and gender orientation.
Some states went as far as the Supreme Court, but the High Court said those two protections could not be severed from the 2024 Regulations, and in a per curiam opinion stayed the enforcement of the whole of Title IX 2024.
Finally, on January 9, 2025, the United States District Court for the Eastern District of Kentucky, in the lawsuit State of Tennessee, et al. v. Miguel Cardona, quoted provisions of the Administrative Procedures Act and accused the DOE of bypassing the legislative process by (1) exceeding DOE’s agency authority by adding “new protections” to the Title IX statute, (2) violating the Constitution, and (3) acting in a way that was arbitrary and capricious.
The district court then, with a ruling by Chief Judge Danny C. Reeves, succeeded in completely vacating Title IX 2024 with a simple Memorandum Opinion and Order, finalizing a summary judgment for the Plaintiff states against Secretary Cardona.
However, Judge Reeves was totally incorrect about “new protections” in Title IX. Gender stereotyping has been protected under Title IX since the first Title IX Regulation was published in 1975.
In 2001, after the Supreme Court had established private rights of action in two lawsuits dealing with sexual harassment in K-12 schools, Gebser v. Lago Vista Independent School District (1998) and Davis v. Monroe County Board of Education (1999), DOE and the Office for Civil Rights (OCR) began to communicate to the states’ their duties and responsibilities under Title IX in so-called “Dear Colleague Letters” (DCLs), which were labelled “significant guidance” by the Office for Management and Budget.
Over the years, DCLs explained that all students, including LGBT students, were protected under Title IX. Protection for LGBT students was not “new” in Title IX 2024, as Judge Reeves asserted.
The most strongly worded of the rights protected by Title IX appeared in the DCL of October 26, 2010, titled “Harassment and Bullying,” the DCL of April 4, 2011, titled “Sexual Violence,” and the ill-fated May 3, 2016 DCL titled “Transgender Students.” When Betsy DeVos became Secretary of Education in the Trump administration, DeVos ordered Sandra Battle, then-Acting Assistant Secretary of the Office for Civil Rights (OCR), to rescind the DCL on Transgender Students and DeVos issued a NPRM that would later become Title IX 2020.
Judge Reeves, therefore, was incorrect in asserting that DOE exceeded its agency authority under Title IX 2024 by adding gender identity and gender orientation to the scope of Title IX. Those protections had been part of DCLs over decades of enactment of Title IX.
Judge Reeves was also incorrect in asserting that Title IX 2024 violated the Constitution because his reasoning on that issue was dependent on schools forcing staff members into “compelled speech” for the “new inclusion” of the newly-protected category of “transgender,” where staff would be forced to greet and call on students by their new transgender names.
Instances of problems with school staff who did object to using trans students’ new identities had occurred, but these problems were not caused by the “new scope” of Title IX 2024.
And finally, the enactment of Title IX 2024 was certainly not arbitrary and capricious; its planned adoption was announced by a published NPRM in the Federal Register on June 23, 2022, open for two months of public comments, and received 349,177 written comments, which DOE categorized, considered, and then responded to the comments. No, not arbitrary and capricious at all.
What This Means for Your College or University
However, Chief Judge Danny Reeves in this lower federal district court ruling, in fewer than 20 pages, most of which were not factually supported, vacated the most universal “not-one-size-fits-all” set of Title IX 2024 Regulations.
Short of an appeal, DOE is now forced to rely on the truly “one-size-fits-none” Title IX 2020 creation of Betsy DeVos and the Trump administration.
Higher education administrators with questions or concerns should contact their legal counsel or an attorney at KingSpry for guidance.
Four Years in the Making – And Gone in One Lower Court Ruling!
Posted on February 14th, 2025
by Dr. Kathleen Conn
For a statute with a concise statement of thirty-seven words, Title IX has had a long history of interpretations since its passage with the Education Amendments of 1972: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Over the years, the statute’s brevity has demanded expansion and explanation. However, the latest attempt to “explain” Title IX was an intentional (and successful) attempt to vacate the most recent Title IX Regulations, Title IX 2024, which is forcing the Department of Education (DOE) to revert to the previous “one-size-fits-all” version, Title IX 2020 of the Trump administration.
When the Biden administration took over in 2021, President Biden immediately published several Executive Orders relating to Title IX’s protection for gender identity and gender orientation. The new Secretary of Education Miguel Cardona announced fifty years to the day on which Title IX had been enacted, June 23, 2022, that the Department of Education (DOE) would be issuing a Notice of Proposed Rulemaking (NPRM) for new Regulations for Title IX.
The new Rule was published in the Federal Register on April 29, 2024, four years after Title IX 2020 had been enacted.
Although Title IX 2024 was scheduled to take effect nationwide on August 1, 2024, cadres of 20-odd states, mostly the so-called “red states,” in June and July of 2024 began suing for preliminary court injunctions to stay the enactment of the parts of Title IX 2024 affording protections for students based on gender identity and gender orientation.
Some states went as far as the Supreme Court, but the High Court said those two protections could not be severed from the 2024 Regulations, and in a per curiam opinion stayed the enforcement of the whole of Title IX 2024.
Finally, on January 9, 2025, the United States District Court for the Eastern District of Kentucky, in the lawsuit State of Tennessee, et al. v. Miguel Cardona, quoted provisions of the Administrative Procedures Act and accused the DOE of bypassing the legislative process by (1) exceeding DOE’s agency authority by adding “new protections” to the Title IX statute, (2) violating the Constitution, and (3) acting in a way that was arbitrary and capricious.
The district court then, with a ruling by Chief Judge Danny C. Reeves, succeeded in completely vacating Title IX 2024 with a simple Memorandum Opinion and Order, finalizing a summary judgment for the Plaintiff states against Secretary Cardona.
However, Judge Reeves was totally incorrect about “new protections” in Title IX. Gender stereotyping has been protected under Title IX since the first Title IX Regulation was published in 1975.
In 2001, after the Supreme Court had established private rights of action in two lawsuits dealing with sexual harassment in K-12 schools, Gebser v. Lago Vista Independent School District (1998) and Davis v. Monroe County Board of Education (1999), DOE and the Office for Civil Rights (OCR) began to communicate to the states’ their duties and responsibilities under Title IX in so-called “Dear Colleague Letters” (DCLs), which were labelled “significant guidance” by the Office for Management and Budget.
Over the years, DCLs explained that all students, including LGBT students, were protected under Title IX. Protection for LGBT students was not “new” in Title IX 2024, as Judge Reeves asserted.
The most strongly worded of the rights protected by Title IX appeared in the DCL of October 26, 2010, titled “Harassment and Bullying,” the DCL of April 4, 2011, titled “Sexual Violence,” and the ill-fated May 3, 2016 DCL titled “Transgender Students.” When Betsy DeVos became Secretary of Education in the Trump administration, DeVos ordered Sandra Battle, then-Acting Assistant Secretary of the Office for Civil Rights (OCR), to rescind the DCL on Transgender Students and DeVos issued a NPRM that would later become Title IX 2020.
Judge Reeves, therefore, was incorrect in asserting that DOE exceeded its agency authority under Title IX 2024 by adding gender identity and gender orientation to the scope of Title IX. Those protections had been part of DCLs over decades of enactment of Title IX.
Judge Reeves was also incorrect in asserting that Title IX 2024 violated the Constitution because his reasoning on that issue was dependent on schools forcing staff members into “compelled speech” for the “new inclusion” of the newly-protected category of “transgender,” where staff would be forced to greet and call on students by their new transgender names.
Instances of problems with school staff who did object to using trans students’ new identities had occurred, but these problems were not caused by the “new scope” of Title IX 2024.
And finally, the enactment of Title IX 2024 was certainly not arbitrary and capricious; its planned adoption was announced by a published NPRM in the Federal Register on June 23, 2022, open for two months of public comments, and received 349,177 written comments, which DOE categorized, considered, and then responded to the comments. No, not arbitrary and capricious at all.
What This Means for Your College or University
However, Chief Judge Danny Reeves in this lower federal district court ruling, in fewer than 20 pages, most of which were not factually supported, vacated the most universal “not-one-size-fits-all” set of Title IX 2024 Regulations.
Short of an appeal, DOE is now forced to rely on the truly “one-size-fits-none” Title IX 2020 creation of Betsy DeVos and the Trump administration.
Higher education administrators with questions or concerns should contact their legal counsel or an attorney at KingSpry for guidance.