The path to implementing the new 2024 Title IX Regulations has been a long and winding road and as we approach the August 1^st deadline, injunctions issued in two federal lawsuits are directly impacting Ohio K-12 schools as they prepare to begin the new academic year.

When the U.S. Department of Education announced the final version of the new regulations in April of this year, a total of 26 states immediately filed legal challenges to the new regulations via seven different lawsuits.  These cases take particular issue with the changes in Section 106.10 of the final rule, which states that Title IX prohibits discrimination based on sexual orientation and gender identity.

The 26 states, including Ohio, have argued that the new regulations will prevent schools from having gender-specific facilities, such as restrooms and locker rooms and will also prevent schools from protecting student privacy and ensuring fair competition in women's sports.

Let's take a closer look at the two cases currently impacting Ohio schools' implementation of the new 2024 Title IX regulations.

1.      Tennessee v. Cardona – 2024 U.S. Dist. LEXIS 106559 (U.S. Dist. Ct., E.D. of Kentucky)

This case was brought by the attorney generals of Tennessee, Kentucky, Indiana, Virginia, West Virginia and Ohio.  In June, the Court issued an injunction prohibiting the U.S. Department of Education from enforcing or penalizing schools for failure to implement the new regulations.  The U.S. Dept. of Ed. appealed the District Court's decision.  On July 17, 2024, the U.S. Sixth Circuit Court of Appeals denied the U.S. Dept. of Ed.'s appeal and upheld the injunction pending further review in October of 2024.

Based on the Sixth Circuit's decision, the U.S. Department of Education is currently prohibited from enforcing the new regulations in Ohio or penalizing schools for their failure to implement the new regulations.  It is important to note that the injunction prohibits the U.S. Department of Education from taking any action in Ohio with respect to the new regs, but it does not prevent schools from updating their policies if they choose to do so. 

2.      Kansas v. U.S. Dept. of Ed.- 2024 U.S. Dist. LEXIS 116479 (U.S. Dist. of Kansas)

This case involves the states of Kansas, Alaska, Utah and Wyoming, but also includes a group called Moms for Liberty as a co-plaintiff.  Moms for Liberty is a group primarily consisting of parents of K-12 students from across the country that are opposed to the new regulations.

When the District Court of Kansas issued its preliminary injunction against the U.S. Dept. of Ed. in July, it also indicated that the injunction applied to any school in the United States attended by children of Moms for Liberty members. 

As a result, the Court asked Moms for Liberty to submit a list of schools on July 15, 2024 and a second list of schools on July 26, 2024.  The Court's view is that the list only applies to individual schools, not entire school districts.  A copy of the July 15^th  list submitted by Moms for Liberty can be accessed by clicking here and the July 26^th list can be accessed by clicking here.  The lists do include K-12 schools located in Ohio. 

To further confuse matters, the Court also stated that the injunction also protects prospective members of Moms for Liberty, which means that the plaintiffs may have the ability to supplement the list moving forward.  The U.S. Dept. of Ed. has also filed an appeal with the U.S. Supreme Court to stay parts of the preliminary injunction and allow the remainder of the new regulations to be implemented.

What Happens Next?

As you can see, Ohio K-12 schools are impacted by both the Tennessee and Kansas cases.  The injunction in the Tennessee case prohibits the U.S. Dept. of Ed. from enforcing the new T-IX regulations throughout the entire State of Ohio.  The injunction in the Kansas case prohibits the U.S. Dept. of Ed. from enforcing the new regs at Ohio K-12 schools specifically identified on the lists submitted by the Moms for Liberty.  These injunctions create a wide range of legal issues for schools to consider in determining how to move forward heading into the upcoming academic year.

PKM has more than 125 years of combined experience that allows us to help educational institutions overcome their challenges and will continue to monitor this rapidly changing landscape. We recommend that schools consult with their respective legal counsel to discuss next steps as you navigate these turbulent times and invite you to please stay tuned for further updates!

David J. Sipusic, J.D., Senior Counsel

Peters, Kalail & Markakis, Co., L.P.A.

Phone: (216) 503-5083

Email:  [email protected]