It seems like the only thing that has lasted longer than Taylor Swift’s Eras Tour is the ongoing saga of the Biden Administration’s attempt to revise the Title IX regulations. The curtain was supposed to go up on the 2024 regulations on August 1, but now at least two federal judges have told the US Department of Education that “We Are Never Ever Getting Back Together” on these regulations. Where do we stand now? Well, grab your popcorn and let’s “Speak Now.”
The Courts To US Department of Ed: “You Need to Calm Down”
On June 13, 2024, a federal court in Louisiana decided to "Shake It Off" and temporarily blocked the new Title IX rules in Idaho, Louisiana, Mississippi, and Montana. Then on Monday June 17, a federal court in Kentucky decided to join the "Bad Blood," extending the block to Indiana, Kentucky, Ohio, Tennessee, Virginia, and West Virginia. With decisions pending in lawsuits affecting 16 other states, it looks like we’re in for a "Long Story Short."
Nebraska and South Dakota have joined a coalition of six state attorneys general who have filed suit in the U.S. District Court for the Eastern District of Missouri. The attorneys in that case just submitted their final briefs to the judge on June 14, and the parties have asked for oral argument. That case should be decided sometime in the next six to eight weeks.
For its part, Wyoming has joined a four state group that filed a 1,085 page complaint in the Kansas Federal District Court. (The judge likely read that long Complaint and said “I Knew You Were Trouble” when the parties walked into court.) The Kansas judge has not yet set a briefing schedule, so it is unclear when the first round of that litigation will be completed.
Each of these federal lawsuits will likely produce appeals to their respective circuit courts, so we won’t have an "End Game" to these proposed regulations until the Supreme Court rules or there is a change in administrations. That means we are almost certain to start the school year with schools in some states obligated to comply with the new regulations and others still governed by the 2020 regulations. (Schools in all states can roll their eyes and tell OCR “Look What You Made Me Do”).
So Now What?
At this point, we are advising KSB clients to get up to speed on the new regulations, the old regulations, and the differences between the two. We provided an updated Title IX policy to our policy service subscribers with our 2024 updates. Notice that the new policy does not specifically address the topics generating all of the news headlines and litigation (like gender identity). Schools that adopt the new policy will continue to address these issues at the local level as they arise, given the unique facts of each situation. The new regulations have not been enjoined in any KSB client states (yet). We will closely monitor that litigation and provide options for compliance if and when those cases are decided.
What About training?
KSB plans to streamline both our in-person and on-demand Title IX team training to get administrators “Ready for It” no matter what the courts do. We’ll include a refresher on the 2020 Title IX rules, cover the basics of sexual harassment grievance processes, and add the mandated topics from the 2024 rules. This way, your Title IX team won’t forget their training by the time they need it—if they need it at all. You’ll be ready for whatever comes your way, and you won’t have to sing “All Too Well” about forgotten regulations.
The new regulations also require all staff be trained on sex harassment (which we have recommended ever since 2020, since any staff member who knows about but doesn’t report possible sex harassment can create liability for your district.) So when your “Begin Again” for the start of the 2024-25 school year, you should make some time for either in-person or on-demand training for all staff (including classified staff, board members and community coaches).
From “Speak Now” to “Evermore”
Until schools are “Out of the Woods” we’ll keep blogging about the Title IX conundrum. On Tuesday, June 25, we will host a three hour webinar that will give you more detail on the litigation, explain the new regulations, compare them to the old regulations and give you practical advice on how to use this “Cruel Summer” to get ready for the 2024-25 school year.
If you have questions, contact one of the KSB attorneys or your district’s legal counsel. KSB School Law will try to help you be “Fearless” in complying with whatever the government throws at us.