ECR Cross Post: It's 2025, but the 2020 Title IX Rule is Back

This post is cross-posted with permission from Jackie Wernz of ECR Solutions. 

A short order from a federal trial court in Kentucky sent shockwaves through the education community today by vacating the 2024 Title IX rule. As the 15-page decision explains, the vacatur remedy "takes the unlawful" 2024 Title IX rule "off the books," preventing the rule's application "to all who would otherwise be subject to its operation." The decision does not include the terms "nationwide" or "universal." It also states that "the Plaintiff States [Kentucky, Indiana, Ohio, Tennessee, Virginia, and West Virginia], their political subdivisions, and their recipient schools need not comply with the [2024 Rule] to receive federal funding," seemingly acknowledging that other states are not involved in this specific dispute. But scholars recognize that vacatur is an inherently universal or nationwide remedy, so reputable news sources are already reporting that the decision means the end of the 2024 Rule everywhere, not just the states involved in the Kentucky case.

So what now? If you are in one of the 26 states or a school where the 2024 Title IX rule was already subject to an injunction, you don't need to change anything based on this decision. You should continue to use the 2020 rule.

If, however, you are in a state and school where the 2024 rule took effect on August 1, 2024, your safest bet is to begin using the 2020 rule for new cases from today forward. 

I know, I know, this is not what you want to hear. It's a major headache. However, unless and until an appellate court steps in to overturn the Kentucky court's decision, it is as if the 2024 rule no longer exists. Without that rule in place, there is a very strong argument that the 2020 rule is the law of the land. 

Could you just ignore it? You could, but do so at your own risk. I would not be surprised if, when Donald Trump returns to the White House on January 20, his Office of Civil Rights (OCR), which enforces Title IX, wastes no time going after schools that are using what the Trump team has from day one believed is an unlawful rule. Therefore, there may be genuine consequences—swiftly—if your educational institution persists in applying the 2024 rule following this decision.

Here is what a Title IX process might look like in a "2024" state or school:

• Incidents occurring before August 14, 2020 — follow pre-2020 Rule Title IX policy 
• Incidents between August 14, 2020, and July 31, 2024 — follow 2020 Title IX Rule policy
• Incidents between August 1, 2024, and January 9, 2025 — follow 2024 Title IX Rule policy
• Incidents on or after January 10, 2025 — follow 2020 Title IX Rule policy. 

You may be wondering—wait, does that mean we need to update our policies, republish student handbooks, and redo all other materials right away? Although that may technically be required, as a former OCR attorney, I can say from experience that OCR typically works with schools that make good-faith efforts to make updates within a reasonable timeframe. I can't imagine that would be different in an emergency like this that is not of the school's own making. 

That said, here is a list of steps to take now, as soon as possible:

1. Consult Legal Counsel. Engage a trusted school lawyer to navigate the transition back to the 2020 regulations and address any state-specific legal considerations or institution-specific needs. 
2. Communicate Changes to Your Community. If this is confusing to you, imagine how indecipherable it could be to someone who is thrust into the Title IX process amidst all of these changes. Communicate what is happening to stakeholders and include that information on your civil rights or Title IX website so that it's there when someone needs it.
3. Re-publish your 2020 Title IX policy as an "interim policy" online and make clear what policy you will use and when. Use that same civil rights or Title IX website. Once you've taken that step, you can begin what I know is. a lengthier, more involved process to update your policy on the books. You may want to aim for next school year; this is something to think through with your trusted school attorney. I know I will want to keep an eye on any changes that the Trump administration makes after the presidential transition and also consider the many lessons learned about the 2020 rules from the first go-around when working with clients to prepare a final policy.
4. Provide updated training to your Title IX team on the 2020 Rules. It has likely been some time since your Title IX coordinators, investigators, decision-makers, and informal resolution facilitators have thought about the 2020 Title IX rule. Now is the time for a brief refresher. This doesn't need to be anything too formal, but having a live option where people can ask questions of an expert is your best bet in confusing times like these.
5. Provide resources to your Title IX team and those who support them. If you do not already have a handbook of forms, documents, and templates for your Title IX team and those who support them, now is the time for it. Remember, because those in "2024" states and schools may still have complaints that they need to handle under the 2024 rules going forward, your team should have access to materials for both the 2020 and 2024 rules. 

For more information on these issues, including how to communicate with your community and training and handbook options, contact me at jackie@educationcivilrights.com. Also, for more updates on this issue as they arise, sign up for my email updates at www.educationcivilrights.com.