Seattle Attorneys Blog
The U.S. Supreme Court has denied the government’s emergency applications for partial stays of the preliminary injunctions against the new Title IX Final Rule while the appeals are pending in the Fifth and Sixth Circuits. The preliminary injunctions are not nationwide, but apply only to the plaintiffs.
The government argued the challenged provisions of the rule should be severed so that the rest of the Final Rule could take effect. Those provisions are 34 C.F.R. §106.10, which defines sex discrimination, §106.31(a)(2), which addresses sex-separated spaces and prohibits schools from adopting policies that prevent a person from participating in an education program or activity consistent with their gender identity, and the definition of hostile environment harassment in §106.2. The Court noted the lower courts had determined that the new definition of sex discrimination, including discrimination on the basis of sexual orientation and gender identity, affected many of the other provisions and could not readily be severed, at least at the preliminary stage. The lower courts also noted that schools would have difficulty applying the Final Rule when parts of it were enjoined.
The government had the burden of showing that its severability argument was likely to succeed and that the equities favored a stay. The Court concluded the government had not met that burden with the limited record and emergency applications. The Court determined the government had not given it a sufficient basis to overturn the lower courts’ conclusions that the challenged provisions were intertwined with the other provisions or identified any specific provisions that were sufficiently independent. In addressing the equities, the Court noted the Sixth Circuit had already expeditated the case and anticipated the Courts of Appeal “will render their decisions with appropriate dispatch.”
Justice Sotomayor, joined by Justices Kagan, Gorsuch, and Jackson, dissented in part. The dissent noted that every member of the court agreed that the respondents were entitled to interim relief with regard to the three challenged provisions, specifically 34 C.F.R §106.10, §106.31(a)(2), and the definition of hostile environment harassment in §106.2, but stated the preliminary injunctions barring enforcement of the whole rule were “overbroad.” The dissent noted the respondents had alleged irreparable harm would arise from those three provisions if the Final Rule went into effect. The dissent also pointed out that the government had only requested a partial stay.
Justice Sotomayor stated she would grant most of the stay request, leaving enjoined only the three challenged provisions, and for §106.2, only the hostile environment harassment definition. When a party shows they are likely to suffer irreparable harm without a preliminary injunction, the court must tailor the relief to avoid burdening the defendant more than necessary to redress the alleged injuries. The dissent reasoned that enjoining the entire Final Rule seems to exceed what is necessary to redress the alleged injuries because the respondents’ alleged injuries all flow from the challenged provisions.
The dissent acknowledged the respondents might be able to show other provisions in the Final Rule would irreparably harm them further in the litigation, but stated that enjoining the application of the other parts of the Final Rule at this stage unnecessarily impairs enforcement of Title IX and deprives individuals from the protections it provides against types of sex discrimination that are not being challenged.
With schools starting, the future of the new Title IX Final Rule still remains uncertain. The Department of Education is currently enjoined from enforcing the 2024 Final Rule in 26 states. Although Washington is not among those states, the Department of Education is enjoined from enforcing the 2024 Final Rule against certain schools in Washington because parents or students of those schools are members of organizations that participated in the lawsuit. The list of those schools is available on the Department of Education’s website. The 2020 Final Rule still applies in states and as to educational institutions where the new Final Rule is enjoined, but the 2024 Final Rule took effect on August 1, 2024 where it is not enjoined. This may lead to significant confusion with regard to what rules a particular school should apply. If you or your child have been accused of sexual harassment or sexual misconduct at school, it is in your best interest to contact an experienced Washington Title IX defense attorney right away. Set up an appointment at Blair & Kim, PLLC, by calling (206) 622-6562.