U.S. District Judge Issues Nationwide Vacatur of 2024 Title IX Regulations while Additional Changes to Title IX are Expected Under the Incoming Presidential Administration

01.14.2025

Effective August 1, 2024, the United States Department of Education’s (“USDOE”) “Final Rule” modified the regulations implementing Title IX of the Education Amendments of 1972 (“Title IX”). The “Final Rule” (hereinafter referred to as the “2024 Title IX Regulations”) made significant changes to the 2020 Title IX regulations, including changes to definitions, the grievance process, reporting obligations, and training requirements.[1] Even before their implementation, several federal lawsuits challenged the 2024 Title IX Regulations which resulted in multiple injunctions preventing the USDOE from enforcing the 2024 Title IX Regulations in 26 states as well as a multitude of individual schools, community colleges, and universities across the United States, including some in California. The remaining states and educational institutions implemented the 2024 Title IX Regulations.

However, on January 9, 2025, the United States District Court for the Eastern District of Kentucky (“Court”) issued a decision in Tennessee v. Cardona (Civil Action No. 2:24-072-DCR (January 9, 2025)), vacating the 2024 Title IX Regulations, which will affect school districts, community colleges, and universities nationwide that receive federal funding. By determining that vacatur was the appropriate remedy, the Court decided that the 2024 Title IX Regulations, in their entirety, are invalid and must be set aside.

This Alert summarizes the implications for postsecondary institutions in light of this Court decision and what colleges and universities may expect to see regarding Title IX under President-elect Trump’s administration.

Nationwide Vacatur of 2024 Title IX Regulations (Tennessee v. Cardona)

In Tennessee v. Cardona, the federal District court issued an order granting summary judgment to the plaintiffs—six states, the Christian Educators Association International, and one female student athlete—finding that the 2024 Title IX Regulations exceeded the USDOE’s authority, violated the United States Constitution, and resulted from arbitrary and capricious agency action. (Cardona, Civil Action No. 2:24-072-DCR, p. 1.)

The Court determined that the USDOE exceeded its authority under the Administrative Procedure Act (“APA”) (5 U.S.C. § 551 et seq.), which sets forth the process and standards for how the USDOE and other federal agencies can issue regulations. Specifically, the Court determined that the USDOE exceeded its authority by defining “discrimination on the basis of sex” as including discrimination on the basis of gender identity. (Cardona, p. 4). The Court explained that the statutory text of Title IX provides only that “recipients of federal funds under Title IX may not treat a person worse than another similarly situated individual on the basis of a person’s sex, i.e. male or female.” (Id.) Accordingly, the Court concluded that under Title IX, “discrimination on the basis of sex” means, in the words of the Court, “discrimination on the basis of being a male or female,” as distinguished from “gender identity.” (Id. at pp. 6-7.)

The Court also found that the 2024 Title IX Regulations violated the U.S. Constitution in two significant ways. First, by requiring recipients “to use names and pronouns associated with a student’s asserted gender identity,” the Court decided that the 2024 Title IX Regulations violated the First Amendment right to free speech. (Id. at p. 8, 9.) Second, the Court determined that the 2024 Title IX Regulations are unconstitutionally vague and overbroad in violation of the Spending Clause, such that recipients “have no way of predicting what conduct will violate the law.” (Id. at p. 9.) The Court explained that the Spending Clause of the Constitution requires that legislation conditioning the receipt of federal funds, like the Title IX regulations, “impose unambiguous conditions,” and that the conditions imposed on receipt of federal funds “not induce unconstitutional action.” (Id. at p. 10.)

Further, the Court opined that defining “discrimination on the basis of sex” to include discrimination based on “gender identity” was “arbitrary and capricious.” (Id. at p. 11.) The Court explained that the USDOE’s determination that “preventing a person from participating in a program or accessing a sex-separate facility consistent with their gender identity subjects them to harm” is inconsistent with the fact that Congress permits sex separation in social fraternities and sororities and living facilities. (Id. at p. 11.)

The Court considered whether to sever only the parts of the 2024 Title IX Regulations that were directly challenged in the case, but decided against this approach, opining that the definition of discrimination “on the basis of sex . . . .permeates virtually every provision” of the 2024 Title IX Regulations, except for the provisions on parental status, family status, marital status, and pregnancy or related conditions. However, the Court opined that it could not revise the 2024 Title IX Regulations to save the unaffected provisions. Therefore, the Court vacated the entirety of the 2024 Title IX Regulations, including the procedures for handling grievances, training, recordkeeping, and processing complaints. (Id. at p. 12.)

Obligations of Colleges and Universities Following Tennessee v. Cardona

Following the Court’s decision in Cardona, it is reasonable to conclude that the 2024 Title IX Regulations have been “set aside” or taken “off the books” nationwide, and they are no longer in effect for any recipient of federal funds under Title IX.

While the Court did not directly state that its opinion would cause a return to the 2020 Title IX Regulations, the Court’s opinion also did not vacate the 2020 Title IX Regulations. Therefore, it appears the intent and effect of the Court’s vacatur, unless reversed on appeal, is to return to the most recent set of Title IX Regulations (i.e., the 2020 Title IX Regulations).

Although the Court commented that vacatur of the 2024 Title IX Regulations is “not likely to have a disruptive effect,” this order will impact colleges and universities that have already implemented the 2024 Title IX Regulations. While the 2020 Title IX Regulations are significantly different from the 2024 Title IX Regulations, the impact for colleges and universities may be felt most acutely in the area of decision-making procedures for matters involving sexual harassment. The 2020 Title IX Regulations required colleges and universities to conduct live hearings, but the 2024 Title IX Regulations allowed other options for resolution (e.g., a single investigator model). Therefore, invalidation of the 2024 Title IX Regulations appears to require a return to live hearings for those colleges and universities that changed their procedures in response to the 2024 Title IX Regulations. We advise those colleges and universities currently processing Title IX matters under the 2024 Title IX Regulations to consult legal counsel as to how to continue processing these matters in light of the Court’s ruling in Tennessee v. Cordona.

Furthermore, we note that colleges and universities in California must continue to comply with state law. The California Education Code and other California statutes and regulations expressly prohibit discrimination not only on the basis of “sex” (as does Title IX), but also on the basis of gender, gender identity, gender expression, and sexual orientation. California law also defines prohibited sexual harassment differently from, and generally speaking more broadly than, the 2020 Title IX regulations. Additionally, colleges and universities in California must continue to comply with state and Federal law regarding pregnancy and lactation accommodations for employees and students.

Further, the vacatur of the 2024 Title IX regulations provides an occasion to remind California colleges and universities that SB 493, enacted in 2020 and effective January 1, 2021, established additional requirements for California colleges and universities to follow with respect to the grievance procedures for processing of complaints of sexual harassment.[2] SB 493 clarified the definitions in Education Code section 66262.5 regarding sexual harassment and provided a new grievance procedure set forth in Education Code section 66281.8. Many colleges and universities updated their policies in light of SB 493; and some may have yet to do so. In the end, all colleges and universities should consult legal counsel regarding compliance with SB 493 in light of the Court’s January 9th ruling regarding the 2024 Title IX Regulations.

Whether these requirements of California law face additional legal challenges from parties opposed to the 2024 federal regulations remains to be seen. But presently, and unless and until determined otherwise by a court of competent jurisdiction, California’s prohibitions against discrimination based on gender, gender identity, gender expression, and sexual orientation, in addition to California’s procedural requirements as enacted in SB 493, remain in effect notwithstanding the vacatur of the 2024 Title IX regulations.

Predicted Changes to Title IX Under President-Elect Donald Trump

Although the USDOE may appeal the Court order vacating the 2024 Title IX regulations, such an appeal may be unlikely given the imminent inauguration of President-elect Trump on January 20, 2025. It is more likely that President-elect Trump will affirm the implementation of the 2020 Title IX Regulations upon his inauguration. The USDOE may also issue guidance in the upcoming days or months to clarify practical aspects of the vacatur where prior injunctions did not prevent colleges and universities from implementing the 2024 Title IX Regulations and/or guidance on the interpretation of the 2020 Title IX Regulations.

While it is possible the incoming administration will make some revisions to the Title IX regulations, the process of issuing new regulations can be lengthy. Given the complexity of the Title IX regulations and the number of public comments received during the prior revision process, it is unlikely that we will see new regulations in effect anytime soon.

If your educational institution has questions about the vacatur of the 2024 Title IX Regulations, adherence to the 2020 Title IX Regulations, or processing ongoing Title IX matters in light of the Cardona decision or SB 493, please reach out to the authors of this Alert or your usual AALRR counsel.

Further, please contact AALRR if your postsecondary institution needs training or assistance in complying with the 2020 Title IX Regulations or other state and federal laws prohibiting sex discrimination. We will continue to provide updates on any changes to the responsibilities for postsecondary institutions to address sex discrimination.

[1] For a full summary of the changes effectuated by the 2024 Title IX Regulations, please see our previous Alert on this subject: https://www.aalrr.com/newsroom-alerts-4034

[2] Review AALRR’s Alert regarding SB 493 here: https://www.aalrr.com/newsroom-alerts-3887