How a Decision from the District Court of Kansas May Impact Your New Jersey School District

A recent preliminary injunction granted by a federal district court in Kansas may apply to certain school districts in New Jersey, and you may not know anything about it.

Earlier this year, the United States Department of Education (“USDOE”) released new Title IX regulations (“2024 Regulations”). Following that publication, multiple lawsuits arose in various federal district courts, seeking injunctions prohibiting the USDOE from enforcing these new regulations.

These cases all contain similar complaints, alleging that three particular provisions of the USDOE’s 2024 Regulations violate the Administrative Procedure Act (“APA”). Pursuant to the APA, a public agency cannot take action which is contrary to law or the Constitution, cannot exceed the agency’s statutory authority, and cannot act in an arbitrary or capricious manner. These three provisions include:

1. The expansion of the definition of sex discrimination to include discrimination based on gender identity (34 C.F.R. § 106);

2. The creation of a “de minimis harm” standard to determine whether school practices, which may normally be exempt from Title IX protections, lose their exempt status (i.e., preventing individuals from accessing a restroom consistent with their gender identity) (34 C.F.R. § 106.31(a)(2)); and

3. The revision of the definition of hostile-environment harassment to include discrimination based on gender identity (34 C.F.R. § 106.2).

These modifications, among other changes to Title IX, were scheduled to take effect on August 1, 2024.

The plaintiffs in these district court cases include at least 26 states, individuals, and national organizations. The State of New Jersey is not a plaintiff in any such case, nor is the State of New Jersey a named party¹.

In Kansas, one of the filing plaintiffs includes the organization, Moms for Liberty. Moms for Liberty is a national organization of members who “declare that they and their children have deeply-held religious beliefs regarding gender identity and transgender issues” and share the belief that “individuals should use the bathroom that aligns with their biological sex.” State of Kansas et al., v. U.S. Dep’t of Educ., Case No. 24-4041-JWB, *47 (D.Kan. Jul 2 2024).

In Kansas, Hon. John W. Broomes of the United States District Court, District of Kansas, granted plaintiffs’ motion for a preliminary injunction against the USDOE. Pursuant to that Order, the USDOE is enjoined from “implementing, enacting, enforcing, or taking any action to enforce” the 2024 Regulations against any plaintiffs. This included all state plaintiffs, as well as “the schools attended by the children of the “current or prospective” members of Moms for Liberty.” Id. The Kansas decision also required all plaintiff organizations, including Moms for Liberty, to file a notice in the court record identifying the schools attended by their members’ minor children on or before July 15, 2024.

On July 19, 2024, Judge Broomes issued a supplemental Memorandum and Order extending the deadline on Moms for Liberty to submit the notice of schools until July 26, 2024. The July 26, 2024 list identifies thirty-seven (37) schools in twenty-six (26) New Jersey school districts.

Thereafter, the USDOE filed interlocutory appeals with both the United States Court of Appeals and the United States Supreme Court, seeking a partial stay of the preliminary injunctions. On August 16, 2024, in a 5-4 decision, the United States Supreme Court rejected the USDOE’s application and upheld these preliminary injunctions.

Thus, as of the publication of this Alert, the USDOE is enjoined from enforcing the 2024 Regulations in any school district located in the plaintiff states, and any school district with a school attended by the minor child of a member of Moms for Liberty. This includes schools located in New Jersey. Currently, this injunction only applies to schools that are identified in the July 26, 2024 court filing. However, the Kansas opinion states that the injunction applies to schools attended by minor children of “current or prospective” members of Moms for Liberty. As such, it is possible that the list of schools and districts identified by the July 26, 2024 court filing may expand.

As we move into this school year, it is important to understand what this preliminary injunction means. Specifically, the injunctions prevent the USDOE from enforcing the 2024 Regulations in the identified places. This means that the USDOE cannot penalize any school district in an identified place if that school district does not adopt the 2024 regulations. These injunctions do not, however, prohibit a school district, whether identified or not, from adopting or modifying its policies to comply with the 2024 Regulations. Instead, if a school district chooses not to adopt the 2024 Regulations, they cannot lose federal funding.

It is important to note, too, that this injunction in no way impacts New Jersey State law, including the New Jersey Law Against Discrimination. Thus, any policies mandated by New Jersey State law and regulation must remain in full force and effect, or the school district is at risk for the loss of State funding and a QSAC finding.

These national injunctions will be in place until at least the early fall, when the individual district courts are scheduled to hold oral argument and render decisions on the legality of the 2024 Regulations. We expect that those decisions will be appealed and heard by the Court of Appeals and, subsequently, the United States Supreme Court. Upon receipt of further information, we will provide you with an update. However, we do not expect that the ultimate decisions in these cases will impact or otherwise overturn or modify New Jersey State Law.

In the meantime, should questions arise regarding policy modifications, we are available to answer any and all specific concerns.

_{¹The Office of the New Jersey Attorney General submitted an amici brief in Kansas in support of the USDOE.}