On January 9, 2025, a federal court in Kentucky vacated the 2024 Title IX regulations that had been adopted by the U.S. Department of Education and which have been in effect since August 1, 2024. (Tennessee v. Cardona (E.D. Ky. Jan. 9, 2025, No. 2:24-cv-00072-DCR-CJS) 2025 WL 63795) What does this mean for charter schools in California?

The court’s decision applies nationwide. Even though the federal court that made last week’s decision is not in California, the court’s order vacated the federal regulations nationwide. As the Department has confirmed, the 2024 Title IX regulations and the 2024 resources are not effective in any jurisdiction. This means California charter schools should no longer be following their 2024 Title IX policies for addressing sex-based discrimination. It is unlikely that the federal government will appeal or seek a stay under the new administration, so the court’s order will likely stand. 

This decision is different from the last round of Title IX court rulings, because those were temporary and did not affect most schools in California. As we informed schools in previous alerts, various states and groups sued the Department in 2024 to block the new Title IX regulations from going into effect. Federal courts in multiple states had already temporarily blocked the new regulations from going into effect in many states and with respect to certain schools. Some charter schools in California were already affected by the temporary block and had reverted back to the 2020 regulations, but most have been operating under the 2024 regulations which largely sync to the protections in California law. Now, the federal court’s order affects all schools in California and nationwide because it vacates the 2024 regulations entirely.

Title IX is a federal law that is still on the books and still applies to charter schools. Title IX is a federal law that has prohibited discrimination on the basis of sex in education programs since 1972, and this law still applies to all schools that receive federal funds. The fact that the federal court vacated the 2024 Title IX regulations nationwide does not change the underlying law, meaning that schools are still prohibited from discriminating on the basis of sex in their education programs.

Schools should follow their 2020-based Title IX policies.  As a reminder, back in mid-2020, the Department overhauled the Title IX regulations and added many new requirements for schools. This included the requirement to adopt and follow detailed grievance procedures for handling formal complaints of sexual harassment, training for members of each school’s Title IX team, and certain notice and posting requirements. California charter schools adopted detailed Title IX policies and grievance procedures, did trainings, posted required notices, and many schools conducted Title IX investigations under those 2020-based policies.

Schools should pull out their 2020-based policies. The Department’s 2024 regulations that went into effect on August 1, 2024 replacedthe old 2020 regulations, but now that the 2024 regulations are vacated, so too is their replacement of the underlying regulations. Until and unless a court or the Department advises otherwise, we presume the underlying 2020 regulations are back in effect. Going back to the 2020 regulations also aligns to the Department’s advice during the temporary blocks of the 2024 regulations for some schools and states.

As explained during Title IX trainings, schools should have retained their 2020-based policies to deal with allegations of conduct occurring before August 1, 2024, so we are hopeful that most schools will be able to easily put those 2020-based policies back into place. There may be some updates needed, e.g. based on changes in California law for policies that cover both federal and state law, but schools should largely have their 2020-based Title IX policies at hand.

Why did the court vacate the 2024 regulations? As a procedural matter, a federal agency like the Department may adopt regulations that effectuate existing laws, but only Congress may actually pass or amend the federal laws themselves. When agencies adopt regulations, they can be sued for having exceeded their authority if their regulations illegally go further than the underlying law. And in 2024, the U.S. Supreme Court decision in Loper Bright gave much more discretion to the federal courts when it comes to determining whether an agency acted within legal bounds by adopting regulations. (Loper Bright Enterprises v. Raimondo (2024) 603 U.S. 369.)

Here, the Department’s 2024 regulations had interpreted Title IX in a broader way than under the previous administration, and the court ruled that the Department exceeded its authority by illegally attempting to expand Title IX protections. The court held the 2024 regulations could not transform Title IX’s protection against “sex” discrimination into a protection against “gender identity” discrimination—only Congress itself can do so.  The court also found the Department unlawfully expanded the meaning of “harassment” under the law in a way that was vague and overbroad when it adopted “hostile environment harassment,” namely by including “subjectively” offensive conduct that merely “limited” access to the educational program.

In short, the court held that only Congress itself can redefine discrimination on the basis of sex under Title IX. Instead of ordering the Department to correct the deficiencies and revise its regulations, the court found the seriousness of the error warranted a serious remedy. By vacating the 2024 regulations, the court ordered what it called “a return to the status quo” of Title IX.  

The protections in California law against discrimination based on gender still apply to charter schools. The vacatur of the 2024 Title IX regulations does not impact California laws. California charter schools must protect students from discrimination based on gender identity, gender expression, and sexual orientation (Ed. Code, §§ 47605(e)(1), 220), they must ensure students are permitted to participate in programs and activities and use facilities consistent with their gender identity (Ed. Code, § 221.5(f)), and they cannot require school staff to disclose a student’s gender identity or sexual orientation without their consent (Ed. Code, § 220.3(a)), among other laws.

In practice, the court’s decision means that certain alleged conduct previously handled under the federal Title IX process will now be addressed by California schools under different processes.

School Title IX teams should consider attending updated training to refresh on the 2020 requirements.  School Title IX teams are required to receive training under the 2020 regulations.  Most schools have previously completed that training, but may want to refresh on the 2020 requirements since the most recent rounds of trainings were on the 2024 requirements.  Note that while schools need to make sure their Title IX teams understand Title IX and can implement it, the annual training requirements for all school employees are now off the books.  Meanwhile, the requirement to post the Title IX team’s training materials online is back on the books. 

Schools should seek individualized legal advice about ongoing investigations and conduct occurring during the 2024-25 school year.  Some schools are currently conducting Title IX investigations under the 2024 regulations, and some schools will continue to learn of alleged Title IX-covered conduct that occurred between August 1, 2024 and January 9, 2025.  Schools will need to consider how to handle those matters in light of the federal court’s ruling.