An ATIXA Tip of the Week by Brett A. Sokolow, J.D.
Today, a federal district court in Kentucky issued a ruling in Tennessee vs. Cardona, one of the several lawsuits against the 2024 Title IX Regulations. This particular lawsuit was filed in the 6th Circuit by plaintiff states Kentucky, Tennessee, Indiana, Virginia, and West Virginia.
As we advised last summer, the court granted a preliminary injunction. We anticipated there would be further proceedings on the merits of the case and ultimately, to determine whether the injunction would be made permanent as to the states involved in the lawsuit. After granting the preliminary injunction, the court heard additional arguments on the merits of the case, rendering its decision yesterday. As expected, the court upheld its earlier inclinations that the 2024 Regulations are unconstitutional and violated the Administrative Procedures Act (APA) by being “arbitrary and capricious.” However, rather than making the temporary injunction permanent, the court ordered vacatur.
Vacatur
As the court noted, “Vacatur operates on the rule itself and prevents the rule’s ‘application to all who would otherwise be subject to its operation.’ See Kentucky, 728 F. Supp. 3d at 522 (quoting East Bay Sanctuary Covenant v. Garland, 994 F.3d 962, 987 (9th Cir. 2020)).”
Based on this language in the opinion, it is ATIXA’s conclusion that the likely effect of this court’s order is to take the unlawful agency action (the 2024 Title IX regulations) “off the books.” Thus, as of today, it is a reasonable read of the court’s order that the entirety of the 2024 Regulations are not in effect for any school or college in any state.
The court’s language on this nationwide impact could have been clearer, and we expect this decision could be appealed, though we also expect that the Trump administration might withdraw any appeal filed by the Biden administration as soon as it takes office. For now, at least, it is logical for ATIXA to interpret the court’s ruling to have considered vacatur to be a universal order applying to all states, though there are many unsettled legal questions surrounding this.
What This Means for Schools and Colleges
One such question is whether schools previously subject to the 2024 Regulations with complaints that fall between August 1, 2024, and January 9, 2025, should apply the 2024 Regs to those complaints. This question applies to both current/active and closed cases. For current/active cases, should schools change course and revert to applying the 2020 Regs? Switching procedures mid-complaint would surely be disruptive, however the Kentucky court explicitly stated in its ruling that, “…vacatur of the Final Rule is not likely to have a disruptive effect.” That leaves you with needing to consult legal counsel on these important timing questions.
One valid school of thought is that the 2024 Regs were in force (for some schools in the 24 states without an injunction) from August 1, 2024, to January 8, 2025, and must be applied to all complaints that fall within that time period. Another valid school of thought is that the court just declared the 2024 Regs unlawful, therefore no one is required to comply with an unlawful rule that was unlawful from the time it was initiated; it’s like the 2024 Regs were never promulgated. As a result of this order, ED logically cannot enforce the invalidated 2024 Regs now against any school, as there are no 2024 Regs on the books for it to enforce. ATIXA recommends that you consult with legal counsel and explore these implications, accordingly.
You may also want to raise the question of whether any findings reached by your schools under the 2024 Regs are valid, and what the implications are if they are not. We think it is reasonable to assume that some respondents will use this ruling to file lawsuits challenging adverse findings made against them under the 2024 Regs, arguing that unlawful rules cannot yield lawful results.
As of January 9th, 2025, all schools in the United States subject to Title IX are now likely subject to the 2020 Title IX Regulations, which are still in effect. Schools should implement policies and procedures, accordingly.
ATIXA Training Adjustments
As a result of this action, ATIXA is discontinuing to offer its 2024 Regs-based certification courses, and all those enrolled will be contacted by ATIXA to make other arrangements. ATIXA continues to offer all of its 2020 regs-based courses, both virtually and in person. ATIXA will continue to recommend a set of Best Practices from the short-lived 2024 Regulations that are not inconsistent with the 2020 Regulations, many of which are summarized, here.
If You Need Help or Support
To meet with an ATIXA consultant to review these important changes, please contact us at inquiry@tngconsulting.com. Join us on Friday for a special Rapid Response Time with IX: It Appears the 2024 Regs Are Done for members to discuss this issue in greater depth.