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Justin Morrison/Inside Higher Ed
Colleges and universities in Democratic-led states from California to New York aren’t immune to the legal fights over the Biden administration’s new Title IX regulations, a court filing this week shows.
Lawsuits challenging the rule, which strengthens protections for LGBTQ+ students, have come from Republican attorneys general and—until now—only affected the states they represent.
But when a federal judge in Kansas blocked the Education Department from enforcing its new regulations in Alaska, Kansas, Utah and Wyoming, he extended the order to cover any school attended by members of three conservative organizations that sued along with the states—Young America’s Foundation, Female Athletes United and Moms for Liberty. When he handed down the order earlier this month, it wasn’t clear just how far that injunction could reach.
Now, after the plaintiffs filed a list of colleges with the district judge Monday, more than 670 institutions across 50 states and territories are covered by the temporary injunction. The regulations were already on hold in 15 states, while another 11 are challenging the regulations in federal court.
The list includes 364 colleges and universities in 26 states that aren’t currently suing the Biden administration over the regulations, according to an Inside Higher Ed analysis of the 26-page document, which is available in a searchable format below.
Colleges appear to have few options to challenge their inclusion on the list. The judge has yet to formally sign off on the list, but he didn’t establish any membership-verification requirements in determining which institutions would be affected by the order. That means that one student who is part of Young America’s Foundation on a campus could trigger the injunction.
Lawyers for the Biden administration are seeking to delay the injunction or, at the very least, to limit it to schools and colleges attended by members who were part of the organizations prior to the court order.
In recent weeks, Young America’s Foundation, a conservative student group, has used the injunction to recruit new members. So has Moms for Liberty, which is primarily focused on K-12 schools.
“By becoming an individual member of YAF, you can ensure that your school is included in the current injunction,” the organization said in a news release.
The plaintiffs respond that narrowing the injunction would undermine the purpose of the court order and “create an untenable situation” where some members are covered and others are not. The judge has yet to rule on the department’s request, but the Biden administration has appealed to the U.S. Court of Appeals for the 10th Circuit.
‘Disruptive Nightmare’
Along with the expansions of protections for LGBTQ+ students, the new regulations, slated to take effect Aug. 1 nationwide, create new protections for pregnant and parenting students and make it easier for students to report sexual harassment.
Colleges have been working since April to make sense of the regulations and figure out how to translate them into campus policies, ensuring they are in compliance by next month. But now, following the Kansas court order, they might not have to enact any changes.
“It’s a disruptive nightmare for schools to figure out who is on first,” said Scott Goldschmidt, a partner at Thompson Coburn focused on higher education law. “When you look at the list, it’s significant … It’s easier to identify schools that aren’t on it.”
The list of institutions now affected runs the gamut from public to private to for-profit. Several exclusively online colleges are listed, along with community colleges and institutions in foreign countries. Forty-two are flagship universities.
Aaron Lacey, a partner at Thompson Coburn and chair of the law firm’s higher education practice, said institutions on the list could choose to move forward and adopt elements of the new Title IX rule, as long as they remain in compliance with the current Title IX regulations, which were put in place in 2020.
But walking that legal tightrope can be difficult. For example, the 2020 regulations require institutions to hold live hearings with an opportunity for cross-examination to allow those accused of sexual misconduct to confront their accusers. The 2024 rule ends that requirement and gives colleges more options to investigate and resolve cases.
Lacey noted that colleges and universities have already “built significant infrastructures” to respond to reports of sexual harassment and misconduct over the last decade, at times going beyond what the 2020 regulations required.
“Schools are going to have to watch carefully and decide if they think they’re covered by these injunctions and, if so, determine whether or not they’ve got to maintain those processes to comply with the old rule, which remains in place,” Lacey said.
Brett Sokolow, former executive director of the Association of Title IX Administrators and now chair of the organization’s advisory board, said colleges and universities should choose to implement the 2024 regulations, given that the court order only prevents the Education Department from enforcing the rule.
“I don’t think there’s anything in these orders that would stop a school from complying with the 2024 rule, though I’m not sure why they would,” Sokolow said. “They’re legally vulnerable to someone arguing that the effect of the injunction is that the 2020 regulations are in effect, and therefore they’re applying the wrong regulation.”
Sokolow said the list of individual institutions in the Kansas case is unusual, but he called it a “clever legal gambit” to secure a nationwide injunction, which is what YAF and Moms for Liberty initially sought.
“If you can’t get the nationwide injunction, at least carve out schools one by one,” he said, describing the “gambit.” He added that there’s the potential for the list to grow as the organizations gain more members. “It would not surprise me at all to see these lists double and triple in size. They could become the functional equivalent of nationwide injunction.”
Lacey said a consequence of the back-and-forth over the Title IX regulations this summer and over the last several years is “widespread confusion” and “extraordinary waste.”
“You’ve got institutions that have just spent the last three months allocating significant financial and human resources trying to prepare to come into compliance with this new rule,” he said. “Now they’re being enjoined, and they’re having to allocate more resources and figure out what to do next. None of this is actually going to help survivors or students.”
