Biden’s Illegal Title IX Rule Is Set for Enforcement. The School Year Is Going to Be Complicated.
Sarah Parshall Perry /
It may still be the dog days of summer, but parents, students, and educators everywhere are already looking to the start of the school year.
And this year will bring one massive change to schools and colleges across the country. On Aug. 1, President Joe Biden’s Department of Education is set to enforce its massive rewrite on Title IX of the Education Amendments of 1972—the simple, 37-word statute that bars sex discrimination in any federally funded education program.
But this simple, long-standing prohibition on sex discrimination has been manipulated by the Biden administration to undermine constitutional freedoms (including the freedom of speech) and to eliminate commonsense due process protections for students accused of sexual misconduct on campus.
Also—and in perhaps what is the biggest change of all—the new Title IX rule expands the definition of “sex” to include “gender identity or expression,” thereby erasing the very women that Title IX was enacted to protect.
These terms weren’t in the minds of the ratifiers of Title IX in 1972, but that’s of no concern to the Department of Education, which believes its vast expansion of the word “sex” is legally sound.
It has purported that a 2020 U.S. Supreme Court case—Bostock v. Clayton County—provides the legal basis for the new rule. But that case doesn’t say anything about Title IX, and the court’s holding was limited to employment discrimination alone.
The ink was barely dry on the Education Department’s vast rewrite before 10 separate federal lawsuits were filed by 26 states, various membership organizations, and individual plaintiffs across the country.
The essential elements of each lawsuit share a common theme: The Biden administration’s new Title IX rule is illegal, unconstitutional, and “arbitrary and capricious” under the Administrative Procedure Act—the federal law that governs all agency rulemaking.
The Administrative Procedure Act requires courts to “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; “contrary to constitutional right, power, privilege, or immunity”; or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”
In six of the 10 federal lawsuits, judges have already issued decisions and temporarily enjoined the revised Title IX rule from taking effect, citing the same “arbitrary and capricious” nature of the regulation.
As a result, there are already temporary injunctions in place against the rule’s application in 22 states.
Further, a federal district court in Kansas enjoined the department’s enforcement of the 2024 Title IX rule in a unique manner that impacts educational institutions nationwide. In addition to blocking enforcement in the specific plaintiff states (i.e., Alaska, Kansas, Utah, and Wyoming), it blocked enforcement at the more than 680 colleges and universities attended by the children of members of the plaintiff membership organizations anywhere in the country.
And now, on Wednesday, a federal court in Oklahoma joined the others in enjoining the rule’s enforcement as well. In writing for the court, U.S. District Court Judge Jodi Dishman held that the state was likely to succeed in the ongoing litigation because it had demonstrated that the Department of Education had acted in an arbitrary and capricious manner in enacting the rule.
She added:
The equities do not favor the Department, and the public interest is not served when the law is misapplied or constitutional rights are violated. Since the current regulations [on Title IX] have been in effect for decades, there is little harm in maintaining the status quo through the pendency of this suit.
Additionally, recipients have only been given three months to comply with all the Final Rule’s changes. Federal funds that go to school programs, salaries, etc., are on the line.
For these reasons, neither the equities nor the public interest favors the Department.
The Biden administration has already asked the U.S. Supreme Court to allow the Department of Education to enforce at least the uncontested parts of the rule. In a pair of filings, U.S. Solicitor General Elizabeth Prelogar asked the court to review the preliminary injunctions stemming from a pair of cases in Louisiana and Tennessee, after both the 5th and 6th Circuits denied the Biden administration’s request to allow portions of the rule to take effect.
Those preliminary injunctions impact 10 states in total.
For the Title IX litigants, it’s been so far, so good.
But a few days ago, that changed.
A federal court in Alabama denied a request for a preliminary injunction filed by Alabama, Florida, Georgia, and South Carolina to block the Title IX rule from going into effect in those states. That denial means that, at least for schools not impacted by another injunction, the 2024 regulations from the Department of Education will go into effect in all schools in those states when school begins a short time from now.
The plaintiff states have already filed an appeal to the U.S. Court of Appeals for the 11th Circuit, requesting an emergency injunction against the rule based on the time-sensitive nature of enforcement.
In light of the ongoing litigation, the Department of Education released resources for schools and stakeholders on how to implement the new rule. The department also warned that the list of schools where it cannot enforce the new Title IX rule may grow in the coming days.
For now, half of the country and hundreds of schools are in limbo as Thursday’s enforcement deadline looms. They will be required to comply with the new Title IX rule that eliminates free speech, campus due process, and protections for biological women—but it’s anyone’s guess how long that will last.
Without compliance, they could be subject to a Title IX complaint, or an investigation by the Department of Education for the failure to comply with the new rule. That further subjects these states and schools to the possibility of losing their federal educational funding and facing lawsuits by the U.S. Department of Justice.
Ultimately, the bulk of litigation over the Title IX rule seems destined for resolution by the U.S. Supreme Court. The court is currently in recess, and won’t convene until its opening conference on Monday, Sept. 30.
At that point, the Justices will consider which—if any—of the Title IX cases to accept for review.
Until that date, one thing is certain. For many schools in the country, the future of enforcement of the new Title IX rule is going to be complicated and uncertain.
With any luck that uncertainty will be short-lived.