Trump promised to get rid of the 2024 Title IX rule on day one. Can he do it?

It's all but certain that the Trump Administration will jettison the 2024 Title IX rule as quickly as possible upon returning to the White House in January. To formally rescind the rule, however, the Department of Education would need to use the lengthy rulemaking process. That "notice of proposed rulemaking" process under the Administrative Procedures Act (APA) is how the first Trump administration issued its 2020 Title IX Rule, and the Biden administration used it to amend the law four years later. But that process literally takes years. The field is a mess right now, with the 2024 Title IX Rule the law in 24 states and enjoined in the other 26. Even in some states where the rule is not enjoined, the Department of Education's Office for Civil Rights (OCR) cannot enforce the rule in certain schools. Folks know I like many of the procedural changes in the 2024 Title IX Rule, particularly those that made the Title IX process more aligned with the realities of K-12 schools. But the current mess in Title IX has sown confusion in a field that was already troublingly confused. If the Trump administration wants to end this confusion and bring everyone back to the same rule, can it easily do so? If so, how? Here are my predictions.

Prediction #1: OCR Will Simply Ignore Cases Seeking Enforcement of Transgender Rights

The 2024 Title IX rule included protections for LGBTQI+ individuals in education programs and activities receiving federal funds. The scope of what is considered "on the basis of sex" was explicitly broadened to include sexual orientation and gender identity. And the rule essentially prohibited adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity, except in the limited circumstances of athletics participation and housing in higher education. Trump promised on the campaign trail to get rid of the rule's transgender protections on day one.

Getting rid of the protections on day one would be almost impossible. However, the only enforcement mechanism for the rule is through the Department of Education's Office of Civil Rights, which will be under Trump's control on day one. OCR regularly simply ignores issues that it doesn't want to address. It can do so publicly, but it can also simply slow play any complaints received. The "evaluation" phase of its processes has no time limit, allowing cases to linger in this OCR no man's land for any amount of time needed. That happened in early 2017, while the Trump OCR worked to issue new guidance on transgender rights after the end of the Obama administration. Although groups and individuals have sued OCR before for its failure to exercise its authority under the law, such lawsuits take time. They would likely linger long enough for the Trump administration to have found a more permanent way to get rid of the 2024 Title IX Rule.

Prediction #2: Trump Will Seek Permanent, Nationwide Injunctions or Stays From Federal Courts

The Trump administration's next step? As my friend Dan Schorr and I discussed on his podcast recently, the Trump administration will almost certainly pull back from defending the 2024 Title IX Rule in the courts where the rule was enjoined. However, could the Trump administration proactively leverage the courts to obtain even more relief?

The parties in the injunction lawsuits asked their respective courts for nationwide injunctions and stays, which were consistently denied at the preliminary stage. Accordingly, the injunctions only limit enforcement of the 2024 Title IX Rule in certain states and jurisdictions.

Now that the Trump administration will be arguing on the same side as the challengers to the 2024 Title IX Rule, would a court be more amenable to a nationwide injunction or a stay of the rule? Nationwide injunctions have been criticized, but a Texas court's recent nationwide injunction of a federal anti-money laundering law shows that this practice is very much alive and well. Moreover, some of the most persuasive arguments for nationwide injunctions-- consistency of the lower court decisions in different jurisdictions and promotion of consistency for the public--are applicable in the case of the 2024 Title IX Rule.

Particularly where at least one of the 2024 Rule injunction cases is before a judge known to be friendly to nationwide injunctions, I wouldn't be surprised to see legal filings in courts on day one of the Trump administration. A nationwide injunction or stay could be issued in a matter of days and would effectively wipe out the 2024 Title IX Rule across the country without any regulatory machinations.

Prediction #3: Trump Will Consider an Interim Final Rule

In extraordinary circumstances, the APA allows the executive to issue an interim final rule, bypassing much of the lengthy rulemaking process. Specifically, the APA exempts notice of proposed rulemaking requirements “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”

A guide to the federal rulemaking process explains that "[w]hen
an
agency
finds
that
it
has
good
cause
to
issue
a
final
rule
without
 first
publishing
a
proposed
rule," it can issue a rule that "becomes
effective
immediately
upon
publication." Although "[i]n
most
 cases,
the
agency
stipulates
that
it
will
alter
the
interim
rule
if
warranted
by
public
comments," if it decides
not
to
make
changes
to
the
interim
rule,
it
can just "publish
a
brief
final
rule
in
the
Federal
Register
confirming
that
decision." As one source points out, "historically relatively few IFRs are ever modified because of feedback (or even finalized permanently, for that matter)."

Although the use of the "good cause" standard for an IFR has not been tested in the courts, a brief look at what courts have determined to be "contrary to the public interest" in the past suggests that a good cause argument could be made in this case that would at least pass the smell test. Specifically, the same arguments that could support a nationwide injunction or stay could also justify swift movement under the APA. Particularly where the Trump administration already has the rule written that it would presumably like to see in place (the 2020 Title IX Rule), this is a unique case that would allow the rule to be pushed forward incredibly quickly.

Any or all of these steps could allow the Trump administration to achieve its goal of dismantling the 2024 Title IX Rule more quickly than the APA would generally allow. Although we will have to wait and see what approaches it takes, those who work in or with educational institutions in states under the 2024 Rule should prepare now for a quick shift back to the 2020 Rule after January 21, 2025.