States Vow Not to Comply with New Title IX Regulations

Types : Alerts

Following the Biden Administration’s release of the new Title IX regulations on April 19, 2024, a growing number of state officials have vowed not to comply with the new final rules, which are slated to take effect on August 1 of this year. In addition, 22 states have now filed suit against U.S. Secretary of Education, Michael Cardona, and the U.S. Department of Education, alleging the new regulations are illegal and should be set aside.

The New Title IX Regulations

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., is a civil rights law that prohibits discrimination on the basis of sex in educational programs and activities. Title IX applies to all colleges, high schools, and elementary schools that receive federal funding and the governing regulations provide instructions for how the law should be interpreted, implemented, and enforced.

The highly anticipated final Title IX regulations that were released last month were widely praised by many for the increased protections afforded to LGBTQ+ students. The new rules clarify that in prohibiting sex discrimination, Title IX also forbids discrimination based on sexual orientation and gender identity. Once the regulations take effect, LGBTQ+ students who face discrimination on such bases will have the right to seek recourse from their schools and, if necessary, the federal government.

The new regulations have also garnered significant attention for their expanded definition of “sexual harassment.” Under the rules promulgated by the Trump Administration under former U.S. Secretary of Education Betsy DeVos, unwelcome sex-based conduct was required to be “severe, pervasive, and objectively offensive” to be deemed sexual harassment. The new regulations, however, require that schools address such conduct when it is “severe or pervasive”—a much lower bar.

The new Title IX regulations also make changes to the procedures required under the law, most notably, those implicating requirements for live hearings.

While some hoped and speculated that the new rules would add protections for transgender students amidst growing debate about their role in school sports, the final regulations released April 19 stopped short of providing such safeguards.

States’ Defiance and Directives Not to Obey

In a statement to the press, Secretary Cardona lauded the regulations for making “crystal clear that everyone can access schools that are safe, welcoming and that respect their rights,” adding that “No one should face bullying or discrimination just because of who they are, who they love.”

However, not all political leaders across the country see the new rules in the same light.

22 states—Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia—have filed or joined lawsuits against the Secretary Cardona and the U.S. Department of Education, calling the new regulations an illegal attempt to rewrite Title IX in a manner inconsistent with the law’s text and the ways it has been interpreted over the last 50-plus years.

Some state leaders have gone even further, vowing not to follow the new regulations, and directing state officials not to comply with the rules once they take effect later this summer. In Texas, for example, Governor Greg Abbott issued a public letter on May 8, 2024 to the state’s public university systems and community colleges directly ordering those institutions to “ignore” the new Title IX regulations, stating:

The chairmen and regent positions at Texas’ public universities and community colleges are appointed by the Texas governor.

Texas is not the only state to instruct its officials not to follow the new Title IX guidance once it takes effect.

In Florida, where the widely publicized Parental Rights in Education Act (commonly referred to as the “Don’t Say Gay Bill” by its critics) generally banned the instruction of sexual orientation and gender identity in public schools, Education Commissioner, Manny Diaz, Jr., issued a statement after the new regulations were released last month, promising that the state “will fight.”

In Arkansas, Governor Sarah Huckabee Sanders recently signed an “Executive Order to Protect Arkansas Students, Women, and Girls” on May 2, 2024. Much of the Executive Order, which proclaims that sex “has long been understood as binary biological characteristics – male…or female” and that “the Biden administration has rejected reality and chosen to appease their left-wing base over students’ safety and best interests[,]” directs Arkansas educational institutions to avoid “having biological males placed into female-designated sports leagues” or forcing students and employees “to use false pronouns” and further orders the Arkansas Department of Education “to provide specific guidance on how to enforce the rights of Arkansans to equal opportunity, free speech, due process, and privacy under the U.S. Constitution, Title IX, and state law, despite the Biden administration’s unlawful administrative rule.”

Amidst this developing landscape and with the 2024 national election on the horizon, other state and local officials are undoubtedly weighing the costs and benefits of taking similar action in their own jurisdictions while the lawsuits against the Biden Administration work their way through the courts.

Uncertainty and Anticipation as the Regulations’ Effective Date Approaches

As the challenges to the recently released Title IX regulations mount and the August 1 effective date inches closer, the impact of the new rules and the litigation seeking to undermine them remains to be seen. Schools that receive federal funding in states like Texas and Arkansas may be forced to choose between conflicting state and federal directives, weighing the costs to students as well as the risk that critical funding could be pulled.

Amidst this rapidly changing and, in many cases, increasingly heated landscape, those impacted by the new Title IX regulations should carefully monitor legal developments and seek guidance from qualified subject area experts as the rules’ effective date draws near.

If you have any questions regarding the new Title IX regulations, please contact Ashley R. Lynam or Rachel L. Welsh of Montgomery McCracken’s Higher Education Group.