Title IX Court Decision: State of Tennessee v. Cardona
On January 9, 2025, a federal district court in Kentucky vacated the 2024 Title IX regulations in State of Tennessee v. Cardona. Although the Department of Education’s Office of Civil Rights (which enforces the rule) has yet to take a position on the matter, vacatur of these regulations will likely be interpreted by reviewing courts to mean that the 2020 Title IX regulations are now in place. With the change in administration imminent, appeal of the vacatur is unlikely.
So what should districts do in the wake of this decision, particularly those who have adopted policies consistent with the 2024 Title IX regulations?
Updating, and, in some cases, unwinding these policies is going to be a complicated process because there are substantial cross-references and terms used across many other policies beyond just the policies and procedures related to Title IX (Policy 2:265 and its administrative procedures) included within PRESS Update 116. IASB has initiated the process to begin the work on these updates. In the meantime, as we await potential guidance from the Department of Education, versions of 2:265 and 2:260 that were drafted for the 2020 Title IX Regulations are going to be made available within your PRESS access. Districts and boards should be nimble and ready to update policies, but keep in mind that guidance from the incoming administration may impact the final landscape.
Until such time as your district updates or adopts its policy, be mindful of the careful balancing act required by not only implementing the policy you have on the books, but doing so in a manner compliant with the 2020 Title IX regulations (i.e. avoiding using a single investigator/decisionmaker model; following additional timelines; etc). The vacatur of these rules does not mean that school districts can ignore or avoid appropriate steps to respond to sexual harassment and other forms of sex discrimination, but changes which regulations are in force and the underlying procedures schools must follow to guide such steps.
In addition to the need to comply with federal laws such as Title IX, schools should be mindful of the Illinois Human Rights Act, which includes protected classifications much broader than those protected under Title IX (including protecting classifications of sexual orientation, gender identity, and establishing specific requirements for many other protected classes). Districts should be careful to appropriately investigate and address conduct alleged to be on the basis of all protected classifications consistent with its policies and the complicated legal requirements for each. These changes at the federal level do not limit school districts’ state law requirements to protect students in these categories from discrimination and harassment, or the requirement to have appropriate policies related to such protections.
If you have a complaint in process, or if you have a complaint that involved conduct during the period when the 2024 regulations were in effect, the individual facts of that complaint are going to be very important to analyze to ensure that the process used and the substantive standard used are compliant with the law.