Parents Defending Education Files Emergency Motion for Administrative Injunction in Title IX Lawsuit

The Department of Education’s sweeping regulation on Title IX will go into effect in less than 36 hours, on August 1, 2024. See 89 Fed. Reg. 33,474 (Apr. 29, 2024). The regulations require a series of radical changes at schools that take federal money, including

• letting males use female restrooms (proposed 34 C.F.R. §106.31, .10)
• letting males shower and undress in front of females in locker rooms (§106.31, .10)
• letting males box and wrestle females in P.E. class (§106.10)
• letting males room with females on overnight trips (§106.10)
• punishing students who refuse to use someone’s “preferred pronouns” (§106.2)
• punishing students who express “offensive” views on same-sex marriage, abortion, gender identity, or other controversial topics (§106.2)

The Title IX rule not only immediately jeopardizes the rights and safety of students. But it also requires schools to digest the rest of the 423-page rule, update their policies, retrain their employees, figure out how to reconcile contrary state laws, and more. And the rule’s effective date is hours away.

Until today, the Department’s Title IX rule was 0-8 in court. District courts preliminarily enjoined the rule’s enforcement in at least 26 States; and the Sixth and Fifth Circuits let those injunctions stand in full, see Tennessee v. Cardona, 2024 WL 3453880 (6th Cir. July 17); La. ex rel. Murrill v. Dep’t of Educ., 2024 WL 3452887 (5th Cir. July 17). The district court was the first to uphold the rule, even though Eleventh Circuit precedent is the most adverse to the Department’s position. See Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791 (11th Cir. 2022) (en banc) (bathrooms); Eknes-Tucker v. Gov’r of Ala., 80 F.4th 1205 (11th Cir. 2023) (gender identity); Speech First, Inc. v. Cartwright, 32 F.4th 1110 (11th Cir. 2022) (free speech). In the rule itself, the Department acknowledges that its rule conflicts with this Court’s precedent: It “declines to adopt the Eleventh Circuit’s reasoning in Adams,” 89 Fed. Reg. at 33,821, an option that agencies don’t have when they litigate in this circuit.

But time is too short for a deep dive into the merits. Though briefing was complete on June 19 and oral argument was held on July 1, the district court did not rule until today, July 30, giving the plaintiffs (Alabama, Georgia, Florida, South Carolina, and four associations who represent students) just hours to seek emergency relief. Now that the district court has denied an injunction pending appeal, D.Ct.Doc.64,
Plaintiffs will file a motion asking this Court for the same relief. But that motion could not be briefed, let alone considered and decided, before the rule goes into effect in less than 36 hours.

Plaintiffs thus ask this Court to enter an administrative injunction by July 31, 2024, temporarily barring Defendants from enforcing the challenged rule in Alabama, Georgia, Florida, and South Carolina until this Court resolves Plaintiffs’ forthcoming motion for an injunction pending appeal. This state-specific relief mirrors the injunctions that six district courts have entered and two appellate courts have upheld. It requires no consideration of the merits: It simply “‘freeze[s]’” the status quo and “buys time” for this Court to consider Plaintiffs’ forthcoming motion. United States v. Texas, 144 S.Ct. 797, 798 (2024) (Barrett, J., concurring). It will not harm Defendants, who must simply wait to enforce the rule for a few more weeks in a few more States. But it’s essential to protect Plaintiffs, schools, and students in this circuit from irreparable harm.