Eighteen states, including Virginia, and the District of Columbia, filed suit on June 4, 2020, in federal district court in the District of Columbia, seeking to block the U.S. Department of Education (DOE) from implementing its recently published final rule (New Title IX Rule or Rule) effectuating sweeping changes to Title IX, the federal law which forbids discrimination on the basis of sex in federally funded K-12 and postsecondary education. The State of New York has filed a separate law suit challenging the New Title IX Rule. Without judicial intervention, the new Title IX regulations will go into effect on August 14, 2020.

The substance of New Title IX Rule is short, taking up a mere 8 pages in the Federal Register. However, the DOE’s explanation to the states of how the Rule is supposed to work, and why, is anything but brief: The preamble to the New Title IX Rule encompasses nearly 547 pages of the Federal Register, with a mere 1,971 footnotes to consider.

Among other things, Virginia and the rest of the states that have joined in the law suit, are concerned that the New Title IX Rule unfairly and unlawfully burdens them with “additional mandates and restrictions on schools and [to] provide critical information [about how schools must implement the Rule] . . . found nowhere in the eight pages of [the] regulations themselves.” In addition, the Rule imposes significant new procedural due process requirements on schools, including a mandate that they “must provide for a live hearing,” during which each party, through their advisor, is permitted to cross-examine the other party and all witnesses, “directly, orally, and in real time. . .“ in all Title IX cases alleging sexual harassment.

Because of the potential impact of the New Title IX Rule on public and private schools in the U.S., we will be providing additional updates as the litigation against the DOE moves forward.