The state of Title IX after Tennessee, et al. v. Cardona – what happens now?

February 3, 2025

Types : Alerts

Surprising to no one, the Department of Education has finally issued a Dear Colleague Letter clarifying that the 2020 Title IX regulations are again the law of the land.

On January 9, 2025, the U.S. District Court for the Eastern District of Kentucky issued an order vacating the 2024 Final Rule nationwide. Tennessee, et al. v. Cardona, No. 2:24-00072 (Jan. 9, 2025). This decision was consistent with, though more far reaching than, those of several other courts. As we detailed here, these courts held that Title IX’s legislative history and the First Amendment, among other things, supported their decisions to enjoin the enforcement of the 2024 Final Rule in a total of 26 states. Then, on the eve of President Trump’s inauguration, District Court Chief Judge Danny C. Reeves’s decision in Cardona, which vacated the Final Rule and its corresponding regulations in its entirety, effectively nullified any confusion surrounding the Rule’s validity and application.

The plaintiffs in Cardona challenged three specific provisions of the final rule, which the court found exceeded the Department of Education’s authority under Title IX, rendered the rule unconstitutional, and resulted from arbitrary and capricious agency action. Due to the DoE’s recent endorsement the decision, it is worth reiterating.

1. DOE Violated its Statutory Authority

First, citing Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024), the court found that the DOE exceeded its authority by adding discrimination based on “gender identity” to the definition of discrimination “on the basis of sex.” The DOE had argued that the Supreme Court’s decision in Bostock v. Clayton County, Ga., 590 U.S. 644 (2020), supported its contention that discrimination based on gender identity is discrimination on the basis of sex. In Bostock, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against LGBTQ+ employees because “transgender status [is] inextricably bound up with sex.” See Cardona, No. 2:24-00072 at *5 (quoting Bostock v. Clayton County, Ga., 590 U.S. at 681 (2020)). This application of Bostock, said the Kentucky court, “turns Title IX on its head” because the Bostock Court expressly limited its holding to Title VII. See id. at *5. Further, the court opined that Title VII’s exceptions (those based on bona fide occupational qualifications) do not mirror Title IX’s exceptions (permitting separation of males and females) in a way that permits the extension of Bostock’s rationale. Specifically, the court noted that a prohibition of discrimination based on an individual’s gender identity would be arbitrary and would render Title IX’s exceptions permitting the separation of the sexes nonsensical. See Cardona, No. 2:24-00072 at *7 (referencing Title IX’s permissible sex-based exceptions enumerated in 20 U.S.C. §§ 1681(a)(6)-(a)(7)). The court found that these “stark inconsistencies” and contrary provisions surrounding the definition of sex rendered the Final Rule impermissible such that it had to be set aside. Cardona, No. 2:24-00072 at *7.   

2. The Final Rule Is Unconstitutional

Next, the court held that the Final Rule was unconstitutional because it chilled and compelled speech in violation of the First Amendment, because it was vague and overbroad, and because it violated the Spending Clause. 

First, the court found that the Final Rule’s definitions of sex discrimination and sex-based harassment combined with its de minimis harm standard would essentially violate the First Amendment. Importantly, the Final Rule required Title IX recipients, specifically teachers, to use the name and pronouns associated with a student’s asserted gender identity. The Final Rule also redefined “sex-based harassment” to include both objective and subjective harm that has the effect of limiting a student’s participation in educational programs or activities. Additionally, the Final Rule provided that institutions would be in violation of Title IX if they prevented a person from participating in a program or activity consistent with their gender identity. The court stated that these provisions, when combined, would violate the First Amendment because they would instill within teachers a fear of being accused of sex-based harassment or discrimination for discussing gender issues or for failing to use an individual’s preferred pronouns. This fear, implied the court, would also have the unconstitutional effect of compelling teachers to affirm beliefs surrounding pronouns or gender identity with which they disagree.

Second, the court also found that the Final Rule was vague and overbroad because it added unwelcome sex-based conduct that is subjectively offensive to the definition of sex-based harassment. This new subjective element, the court opined, was so vague that Title IX recipients could have no way of predicting what type of conduct would constitute a violation. Third, the court held that the Final rule imposed ambiguous conditions and induced unconstitutional action in the form of compelling and chilling speech, which, it held, signified a clear violation of the Spending Clause of the United States Constitution. U.S. Const. art. I, § 8, cl. 1.

3. The Final Rule is Arbitrary and Capricious

Finally, the court found that the Department of Education had not provided a sufficient or reasoned explanation for its departure from its longstanding interpretation of Title IX. The Department relied on Bostock for its contention that gender identity and sex are clearly intertwined, however, the court stated that Bostock was too “shaky” because it is limited to Title VII and “did not purport to address, ‘bathrooms, locker rooms, or anything else of the kind.’” Cardona, No. 2:24-00072 at *11 (quoting Bostock, 590 U.S. at 681). The court stated that the Department’s reliance on such a shaky case combined with “glaring inconsistencies” through the final rule rendered it arbitrary and capricious as a whole such that it had to be struck down.

Dear Colleague Letter

Notably, the Cardona court’s decision to vacate the 2024 Final Rule did not expressly speak to the bigger question of what rules are now in play. The DOE’s Office of Civil Rights explicitly addressed this in an online resource dated January 14, 2025, stating, “the 2024 Title IX regulations are not effective in any jurisdiction.”

The DOE’s Office of Civil Rights confirmed this position on January 31, 2025, through a “Dear Colleague” letter to K-12 schools and institutions of higher education. See Craig Trainor, Acting Assistant Sec’y for Civil Rights, Office for Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter: Title IX Enforcement Directive (Jan. 31 2025), https://www.ed.gov/media/document/title-ix-enforcement-directive-dcl. The Dear Colleague letter references the Cardona decision and President Trump’s January 20th Executive Order, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, characterizing the Order as “equally fatal” to the Cardona decision insofar as it contradicts the expanded definition of sex set forth in the now-defunct 2024 regulations. Further, the letter advises that institutions that began any investigations under the 2024 framework should immediately reorient those investigations to comply with the requirements of the 2020 Title IX Rule; this suggests not only that practical aspects of investigation handling may change for institutions that took advantage of the opportunity to relax strict procedural requirements, but that complaints alleging certain types of prohibited conduct may have to be dismissed entirely.

If have any questions regarding necessary policy changes and investigations handling in light of the above, please contact Carrie Evans Wilson or Grace Wagner of Montgomery McCracken’s Higher Education Group

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