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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
(at Covington)

STATE OF TENNESSEE, et al., )

)
Plaintiffs, ) Civil Action No. 2: 24-072-DCR
)
V. )
)
MIGUEL CARDONA, in his Official ) MEMORANDUM OPINION
Capacity as Secretary of Education, et al., ) AND ORDER
)
Defendants. )

*** *** *** ***

As discussed in prior opinions of this Court, this case concerns the United States

Department of Education’s attempt to bypass the legislative process and completely transform

Title IX of the Education Amendments of 1972 through sweeping new regulations. On June

17, 2024, this Court granted the plaintiff-States and Intervenor plaintiffs’ motions for a

preliminary injunction and stay, which prevented the challenged Final Rule from going into

effect with respect to the plaintiffs as planned on August 1, 2024. Now, the Court considers

the plaintiffs’ and the Department’s competing motions for summary judgment.

Because the Final Rule and its corresponding regulations exceed the Department’s

authority under Title IX, violate the Constitution, and are the result of arbitrary and capricious

agency action, the plaintiffs’ motions for summary judgment will be granted and the

Department’s motion for summary judgment will be denied.

I.

The Court recited the factual background of this matter at length in its June 17, 2024,

and July 10, 2024, Memorandum Opinions; therefore, only the basic facts will be repeated
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here. [See Record Nos. 100, 117.] On April 29, 2024, the United States Department of

Education (the “Department”) issued a Final Rule entitled “Nondiscrimination on the Basis of

Sex in Education Programs or Activities Receiving Federal Financial Assistance” (the “Final

Rule”). 89 Fed. Reg. 33474 (Apr. 29, 2024). The Final Rule would bring significant changes

to the regulations that implement Title IX, three of which are specifically challenged in this

action. To begin, for the first time in 50 years, the Final Rule “clarified” that for purposes of

Title IX, “[d]iscrimination on the basis of sex includes discrimination on the basis of sex

stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender

identity.” 34 C.F.R. § 106.10; see 89 Fed. Reg. 33476. The Department indicates that this list

is not exhaustive and that Title IX covers “any discrimination that depends in part on

consideration of a person’s sex.” 89 Fed. Reg. 33803.

The next provision being challenged by the plaintiffs is commonly referred to as the

“de minimis harm” standard, which provides as follows:

In the limited circumstances in which Title IX . . . permits different treatment or

separation on the basis of sex, a recipient must not carry out such different
treatment or separation in a manner that discriminates on the basis of sex by
subjecting a person to more than de minimis harm, except as permitted by 20
U.S.C. § 1681(a)(1) through (9) and the corresponding regulations §§ 106.12
through 106.15, 20 U.S.C. § 1686 and its corresponding regulation §
106.32(b)(1), or § 106.41(b). Adopting a policy or engaging in a practice that
prevents a person from participating in an education program or activity
consistent with the person’s gender identity subjects a person to more than de
minimis harm on the basis of sex.

34 C.F.R. § 106.31(a)(2); 89 Fed. Reg. 33814-26. While the regulations do not include a

specific definition of “gender identity,” the Department understands the term to “describe an

individual’s sense of their gender, which may or may not be different from their sex assigned

at birth.” 89 Fed. Reg. 33809.

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Finally, prior to August 1, 2024, “sexual harassment” under Title IX was defined in

relevant part as “conduct on the basis of sex” that is “[u]nwelcome conduct determined by a

reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies

a person equal access to the recipient’s education program or activity.” 34 C.F.R. 106.30

(effective Aug. 14, 2020). The Final Rule redefines this term as “sex-based harassment,”

which means “sexual harassment and other harassment on the basis of sex, including on the

bases described in [34 C.F.R.] § 106.10 . . . .” 34 C.F.R. 106.2. It includes “[u]nwelcome sex-

based conduct that, based on the totality of the circumstances, is subjectively and objectively

offensive and is so severe or pervasive that it limits or denies a person’s ability to participate

in or benefit from the recipient’s education program or activity. . . .” 34 C.F.R. § 106.2

(emphasis added); 89 Fed. Reg. 33498. Under the new standard, harassment is not limited to

speech occuring on school campuses and may capture conduct that occurs on social media or

“other platforms.” 89 Fed. Reg. 33535.

The plaintiffs include the States of Tennessee, Ohio, Indiana, and West Virginia, and

the Commonwealths of Kentucky and Virginia. Christian Educators Association International

(“Christian Educators”) and A.C., a 15-year-old female student athlete, also were permitted to

intervene as plaintiffs. These parties (collectively, the “plaintiffs”) argue that the Final Rule

and its corresponding regulations are invalid because the Department exceeded its lawful

authority in implementing them and because they are otherwise contrary to law. The

Department and Secretary Cardona (collectively, the “Department”) maintain that the Final

Rule and its corresponding regulations constitute a valid exercise of rulemaking authority and

do not violate any provision of law.

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II.

The Administrative Procedure Act (“APA”) directs a reviewing court to hold unlawful

and set aside an agency action when it finds such action to be “(A) arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional

right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or

limitations, or short of a statutory right . . . .” 5 U.S.C. § 706(2). When a district court rules

on a motion for summary judgment under the APA, “it must apply the proper standard of

review outlined in the APA, and its review must be based on the administrative record.”

Norton v. Beasley, 564 F. Supp. 3d 547, 569 (E.D. Ky. 2021), vacated on other grounds, No.

21-6053, 2022 WL 17348385 (6th Cir. Dec. 1, 2022). See also FreshWater Accountability

Project v. United States Army Corps of Engineers, 629 F. Supp. 3d 761, 770 (S.D. Ohio 2022)

(observing that “[s]ummary judgment is the appropriate ‘mechanism’ for adjudicating claims

arising under the [Administrative Procedure Act].’”).

III.

A. The Department exceeded its statutory authority.

Congress gave the Department authority to issue rules, regulations, and orders to

effectuate Title IX’s prohibition on sex discrimination consistent with the objectives of the

statute. See 20 U.S.C. § 1682. However, the Department exceeded that authority in issuing

the Final Rule and the text of Title IX shows why. Put simply, there is nothing in the text or

statutory design of Title IX to suggest that discrimination “on the basis of sex” means anything

other than it has since Title IX’s inception—that recipients of federal funds under Title IX may

not treat a person worse than another similarly-situated individual on the basis of the person’s

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sex, i.e., male or female. See Texas v. Cardona, –F.Supp.3d–, 2024 WL 3658767, at *31 (N.D.

Tex. Aug. 5, 2024).

The Department’s support for the Final Rule lies primarily in the Supreme Court’s

decision in Bostock v. Clayton County, Ga., 590 U.S. 644 (2020), which involved claims of

employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,

et seq. There, the Supreme Court determined that an employer’s decision to terminate an

employee because of her transgender status violated Title VII’s prohibition on sex

discrimination. The Court observed that Title VII prohibits employers from taking certain

actions “because of” sex and “[s]o long as the plaintiff’s sex was one but-for cause of [the

employer’s] decision, that is enough to trigger the law.” Id. at 656. Reasoning that

“transgender status [is] inextricably bound up with sex,” the Court concluded, “to discriminate

on these grounds requires an employer to intentionally treat the individual differently because

of their sex” and therefore, violates Title VII. Id. at 656, 660-61.

The Department reads Bostock far too broadly by importing its holding into the context

of Title IX. The Court in Bostock expressly limited its holding to Title VII and, even in that

restricted context “[did] not purport to address bathrooms, locker rooms, or anything else of

the kind.” 590 U.S. at 681. And as this Court previously observed, the Sixth Circuit has

repeatedly acknowledged the limited nature of Bostock’s holding. See Tennessee v. Cardona,

–F.3d–, 2024 WL 3019146, at *11-12 (E.D. Ky. June 17, 2024) (collecting cases). More

recently, the Sixth Circuit stated:

As many jurists have explained, Title VII’s definition of discrimination,

together with the employment specific defenses that come with it, do not neatly
map onto other areas of discrimination. Title VII’s definition of sex
discrimination under Bostock simply does not mean the same thing for other

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anti-discrimination mandates, whether under the Equal Protection Clause, Title

VI, or Title IX.

As to the relationship between Title VII and Title IX, the statutes use materially
different language: discrimination “because of” sex in Title VII and
discrimination “on the basis of sex” in Title IX. In addition, the two statutes
serve different goals and have distinct defenses. For these reasons, it does not
follow that principles announced in the Title VII context automatically apply in
the Title IX context. No less importantly, Congress enacted Title IX as an
exercise of its Spending Clause Power, which means that Congress must speak
with a clear voice before it imposes new mandates on the states. The same is not
true of Title VII. All of this explains why we have been skeptical of attempts to
export Title VII’s expansive meaning of sex discrimination to other settings.

Cardona, 2024 WL 3453880, at *2-3 (internal citations and quotation marks omitted).

The plain language of a statute “is the starting point for interpretation, and it should

also be the ending point if the plain meaning of that language is clear.” United States v. Choice,

201 F.3d 837, 840 (6th Cir. 2000); see also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175

(2009) (“Statutory construction must begin with language employed by Congress and the

assumption that the ordinary meaning of that language accurately expresses the legislative

purpose.”). Bostock looked not just to the meaning of “sex” which the parties agree is the

“status as either male or female as determined by reproductive biology.” See 590 U.S. at 655

(alteration omitted). See also 89 Fed. Reg. at 33802 (defining “sex” as the “physiological” or

“biological distinctions between male and female”). But the decision in Bostock turned on

“what Title VII says about it.” Id. at 656. This Court makes the same inquiry here. And when

Title IX is viewed in its entirety, it is abundantly clear that discrimination on the basis of sex

means discrimination on the basis of being a male or female. See Keen v Helson, 930 F.3d

799, 803 (6th Cir. 2019) (observing that “the structure and wording of other parts of a statute

can help clarify the meaning of an isolated term”).

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As this Court and others have explained, expanding the meaning of “on the basis of

sex” to include “gender identity” turns Title IX on its head. While Title IX sought to level the

playing field between men and women, it is rife with exceptions that allow males and females

to be separated based on the enduring physical differences between the sexes. See e.g., 20

U.S.C. §§ 1681(a)(3)-(9), 1686. For example, institutions that receive federal funds may

permit separation of the sexes for purposes of living facilities, boys and girls conferences, and

social sororities and fraternities. See 20 U.S.C. §§ 1681(a)(6)-(a)(7), 1686. And these are just

a few examples. The Department compares these provisions to Title VII’s exceptions that

permit “discrimination” when “religion, sex, or national origin is a bona fide occupational

qualification.” [See Record No. 134, p. 21-22 (citing 42 U.S.C. § 2000e-2(e)(1)).] However,

this argument is hardly convincing, considering the fundamental difference between Title VII

and Title IX. Title VII prohibits discrimination in the workplace generally and, thus, the

exceptions for bona fide occupational qualifications do not have the potential to swallow the

entire statute. Conversely, the entire point of Title IX is to prevent discrimination based on

sex—throwing gender identity into the mix eviscerates the statute and renders it largely

meaningless.

The Final Rule would leave 20 U.S.C. §§ 1681(a)(1)-(9) and 1686 intact while adding

regulations that mandate access to showers, locker rooms, and sexual education classes, among

others, consistent with an individual’s gender identity. See 34 C.F.R. §§ 106.31, 106.33. But

this approach simply does not make sense. Confirming the arbitrary nature of these new

regulations, the Department has offered no rational explanation for the stark inconsistencies that

will result if the Final Rule is allowed to go forward. See, e.g., 89 Fed. Reg. 33, 818 (simply stating

that the statute “created exceptions” to the general prohibition on discrimination in 20 U.S.C. §

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1681(a)(1)-(9), 20 U.S.C. § 1686, and that “the unique circumstances of athletics merit[s] a

different approach to addressing sex discrimination”).

The Court exercises its independent judgment in interpreting Title IX and determining

whether the Department acted within its statutory authority. See Loper Bright Enters. v.

Raimondo, 603 U.S. 369, 412-13 (2024). And while the Department maintains that the

challenged provisions are “not contrary” to Title IX, this Court is tasked with “identify[ing] the

statute’s ‘single, best meaning’ rather than a merely permissible one.” See Tennessee v. Becerra,

117 F.4th 348, 371 (6th Cir. 2024) (J. Kethledge, dissenting, in part, and concurring, in part)

(quoting Loper Bright Enters., 604 U.S. at 400). Accordingly, 34 C.F.R. § 106.10, which

impermissibly redefines discrimination on the basis of sex for purposes of Title IX, must be

set aside.

B. The Final Rule violates the Constitution.

The Final Rule also suffers significant constitutional infirmities. The Court remains

persuaded that the Final Rule offends the First Amendment for the reasons explained in its

prior Memorandum Opinions and Orders. [See Record Nos. 100, 117.] To recap briefly, the

Final Rule’s definitions of sex discrimination and sex-based harassment, combined with the

de minimis harm standard, require Title IX recipients, including teachers, to use names and

pronouns associated with a student’s asserted gender identity. While the Department insists

that this is not necessarily the case (see Record No. 134, p. 39), the new subjective harassment

standard that need only “limit” participation in an educational program or activity, quite clearly

compels this result. See 89 Fed. Reg. 33516 (stating that “whether verbal conduct constitutes sex-

based harassment is necessarily fact-specific” and acknowledging that “a stray remark, such as a

misuse of language,” would not constitute harassment) (emphasis added).

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As the Sixth Circuit recognized in Meriwether v. Hartop, 992 F.3d 492, 508 (6th Cir. 2021),

“[p]ronouns can and do convey a powerful message implicating a sensitive topic of public

concern.” The plaintiffs reasonably fear that teachers’ (and others’) speech concerning gender

issues or their failure to use gender-identity-based pronouns would constitute harassment under

the Final Rule. Put simply, the First Amendment does not permit the government to chill speech

or compel affirmance of a belief with which the speaker disagrees in this manner. See id. See also

Wooley v. Maynard, 430 U.S. 705, 714 (1977).

The Final Rule also is vague and overbroad. In Davis v. Monroe Cnty. Bd. of Education,

526 U.S. 629, 633 (1999), the Supreme Court held that a private cause of action under Title IX

will lie “only for harassment that is so severe, pervasive, and objectively offensive that it

effectively bars the victim’s access to an educational opportunity or benefit.” The new regulation

goes far beyond this standard and prohibits “[u]nwelcome sex-based conduct that, based on the

totality of the circumstances, is subjectively and objectively offensive and is so severe or

pervasive that it limits or denies a person’s ability to participate in or benefit from the

recipient’s education program or activity. . . .” 34 C.F.R. § 106.2 (emphasis added); 89 Fed.

Reg. 33498. As the Court explained previously, several of the terms used in this regulation

are so vague that recipients of Title IX funds have no way of predicting what conduct will

violate the law. See Miller v. City of Cincinnati, 622 F.3d 524, 539 (6th Cir. 2024) (observing

that “[t]he void-for-vagueness doctrine not only ensures that laws provide fair warning of

proscribed conduct, but also protects citizens against the impermissible delegation of basic

policy matters for resolution on an ad hoc basis, with the attendant dangers of arbitrary and

discriminatory application”) (internal citations and quotation marks omitted).

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The Final Rule also violates the Spending Clause of the United States Constitution. See

U.S. CONS. ART. I, § 8, cl. 1. The Spending Clause allows Congress to “attach conditions on the

receipt of federal funds . . . to further broad policy objectives.” S. Dakota v. Dole, 483 U.S. 203,

206-07 (1987). See also Davis., 526 U.S. at 640 (observing that Title IX was enacted pursuant to

Congress’ authority under the Spending Clause). This spending power functions in the nature of

a contract—“in return for federal funds, the States agree to comply with federally imposed

conditions.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). Legislation that

conditions the receipt of federal funds (1) must be in pursuit of the general welfare; (2) impose

unambiguous conditions; (3) the conditions must relate to federal interests in the program; and (4)

the conditions must not induce unconstitutional action. Dole, 483 U.S. at 207-08.

The Final Rule fails the fourth prong for the reasons already discussed. Further, Title IX

does not unambiguously condition the receipt of funds on the prohibition of gender identity

discrimination. See Kansas v. U.S. Dep’t of Educ., –F.Supp.3d–, 2024 3273285, at *12-13 (D.

Kan. July, 2, 2024). When a state accepts a federal grant, it must do so knowingly and voluntarily.

Pennhurst, 451 U.S. at 17. This means that Congress must provide “clear notice” of the obligations

a spending law entails. Kentucky v. Yellen, 54 F.4th 325, 348 (6th Cir. 2022) (emphasis added)

(citing Pennhurst, 451 U.S. at 25). Here, the Department expands Title IX to encompass entirely

new subject matter that is not contemplated by the text of the statute. Further, the Department “has

not had regulations regarding gender identity discrimination on the books for several years and,

just a few short years ago, took a position contrary to the one being advanced today.” Id. at *13.

In the absence of a clear statement from Congress, particularly when the extensive consequences

of the Final Rule are considered, the Final Rule cannot stand.

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C. The Final Rule is arbitrary and capricious.

The Court remains persuaded that the Final Rule is arbitrary and capricious. [See Record

Nos. 100, 117.] The Department does not provide a reasoned explanation for departing from its

longstanding interpretation of Title IX. Although it relies primarily on Bostock, the Supreme Court

was clear that the decision was limited to the context of Title VII and did not purport to address

“bathrooms, locker rooms, or anything else of the kind.” See Bostock, 590 U.S. at 681. Given the

Court’s express disclaimer and the striking differences between Title VII and Title IX, Bostock is

a very shaky place for the Department to hang its hat.

Further, the Department fails to account for the glaring inconsistencies that the Final Rule

creates within Title IX. It acknowledges that Congress has deemed sex separation (and thus, more

than de minimis harm) permissible in various circumstances such as social fraternities and

sororities and living facilities. See 20 U.S.C. §§ 1681(a)(6), 1686. Yet, the new regulations say

that recipients cannot separate the sexes (thus inflicting more than de minimis harm) for purposes

of other “living facilities” such as bathrooms, toilets, or showers. See 34 C.F.R. §§ 106.31, 106.33.

In support, the Department cites “case law, research, testimony and comments from stakeholders,

and evidence from schools’ many years of practical experience” indicating “that preventing a

person from participating in a program or accessing a sex-separate facility consistent with their

gender identity subjects them to harm.” [Record No. 133, p. 25 (citing 89 Fed. Reg. 33818-19).]

Assuming this is true, doesn’t it also subject such persons to harm when they are prevented from

participating in the social fraternity or sorority consistent with their gender identity? Or when they

are prevented from residing in a living facility consistent with their gender identity? It seems clear

that the answer is “yes,” which indicates that Title IX does not encompass the issue of gender

identity at all.

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IV.

Having determined that the challenged portions of the Final Rule are invalid, the Court

considers the appropriate remedy. While the Department argues in favor of severance, the Court

remains persuaded that the three challenged provisions fatally taint the entire rule. As the Court

has explained, the definition of discrimination “on the basis of sex” lies at the heart of Title IX and

permeates virtually every provision of the law.

While not directly challenged in this proceeding, the Final Rule brings new requirements

for handling grievances, training, recordkeeping, and processing complaints. But these regulations

refer to and incorporate provisions the Court deems invalid, which necessitates jettisoning these

regulations as well. See 34 C.F.R. §§ 106.44 (Recipient’s response to sex discrimination

(including multiple references to sex-based harassment)); 106.45 (Grievance procedures for the

prompt and equitable resolution of complaints of sex discrimination (relying on § 106.2’s

definition of sex-based harassment)); 106.46 (Grievance procedures for the prompt and equitable

resolution of complaints of sex-based harassment involving student complainants or student

respondents at postsecondary institutions (same)). While there appears to be at least one provision

that is not directly impacted by the plaintiffs’ challenge, see 34 C.F.R. § 106.40 (Aug. 1, 2024)

(“Parental, family or marital status; pregnancy or related conditions), it simply is not proper for

the Court to rewrite the regulations by excising the offending material, particularly when

rulemaking is the exclusive duty of the Executive Branch. See Ayotte v. Planned Parenthood of

N. New England, 546 U.S. 320 (2006). Thus, the undersigned concludes that the entire Final Rule

and corresponding regulations are invalid and must be set aside.

“[W]hen a reviewing court declares that the challenged action of an administrative agency

violates the law, vacatur is the ‘normal remedy.’” Kiakombua v. Wolf, 498 F. Supp. 3d 1, 50

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(D.D.C. 2020) (quoting Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C. Cir. 2014));

Kentucky. v. Fed. Hwy. Admin., 728 F. Supp. 3d 501, 522 (2024) (observing that vacatur is the

ordinary remedy for a violation of the APA). In essence, a vacatur order “takes the unlawful

agency action ‘off the books’”—“an entirely appropriate response when a plaintiff successfully

establishes that the agency’s conduct violates the law.” Kiakomba, 746 F. Supp. 3d at 50 (citations

omitted). Vacatur operates on the rule itself and prevents the rule’s “application to all who would

otherwise be subject to its operation.” See Kentucky, 728 F. Supp. 3d at 522 (quoting East Bay

Sanctuary Covenant v. Garland, 994 F.3d 962, 987 (9th Cir. 2020)).

Although the Court has discretion to craft a different remedy, there is no reason to do so

here. “In general, whether vacatur is appropriate depends ‘on the seriousness of the agency error

and the disruptive consequences of vacatur.’” Sierra Club v. EPA, 60 F.4th 1008, 1022 (6th Cir.

2023) (quoting Long Island Power Auth. v. Fed. Energy Reg. Comm’n, 27 F.4th 705, 717 (D.C.

Cir. 2022)). The seriousness of the error weighs heavily in favor of vacating the Final Rule, as it

is unlawful on numerous fronts. See id. (observing that “the seriousness of the agency’s error

depends on how likely it is the agency will be able to justify its decision on remand”) (cleaned up).

In other words, the Department could not adopt the same rule on remand by “offer[ing] better

reasoning” or “complying with procedural rules.” See id. (quoting Pollinator Stewardship Council

v. EPA, 806 F.3d 520, 532 (9th Cir. 2015)).

Additionally, vacatur of the Final Rule is not likely to have a disruptive effect. As far as

this Court is aware, every court presented with a challenge to the Final Rule has indicated that it

is unlawful. See Alabama v. U.S. Sec. of Educ., No. 24-12444, 2024 WL 3981994 (11th Cir. Aug.

22, 2024); Oklahoma v. Cardona, No. CIV-24-00461-JD, 2024 WL 3609109 (W.D. Okla. July 31,

2024); Arkansas v. Dept. of Educ., No. 4:24-CV-636-RWS, 2024 WL 3518588 (E.D. Mo. July 24,

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2024); Texas v. United States, No. 2:24-CV-86-Z, 2024 WL 3405342 (N.D. Tex. July 11, 2024);

Kansas v. Dept of Educ., No. 24-4041-JWB, 2024 WL 3273285 (D. Kan. July 2, 2024); Louisiana

v. Dept. of Educ., No. 3:24-CV-00563, 2024 WL 2978786 (W.D. La. June 13, 2024). Further,

vacatur of the Final Rule would simply “cause a return to the status quo” that existed for more than

50 years prior to its effective date. See Sierra Club, 60 F.4th at 1023 (concluding that returning to

the regulatory regime that had been in place for almost 50 years would not have a disruptive effect).

Vacatur of the Final Rule effectively moots the plaintiffs’ request for permanent injunctive

relief. However, Rule 57 of the Federal Rules of Civil Procedure provides that “[t]he existence of

another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate.”

See also 28 U.S.C. § 2201 (providing that a court may “declare the rights and other legal relations

of any interested party seeking such declaration, whether or not further relief is or could be

sought”). The plaintiffs seek declaratory relief stating that: (1) the Final Rule is unlawful because

Title IX’s prohibition on “sex” discrimination does not include the bases or conduct covered by §

106.02’s hostile-environment harassment definition, § 106.10, or § 106.31(a)’s regulation of sex-

segregated facilities and programs; (2) the Final Rule is unlawful because it violates the Spending

Clause and the First Amendment; (3) the Final Rule is unlawful because it is arbitrary and

capricious; and (4) Plaintiff States, their political subdivisions, and their recipient schools are

entitled to funding irrespective of compliance with the Rule.

The plaintiffs’ requested declaratory relief is substantially consistent with the Court’s

decision and will be granted. However, the Court will modify the fourth request slightly, as it goes

too far to affirmatively conclude that the plaintiff-States “are entitled to funding irrespective of

their compliance with the Rule.” After all, the plaintiff-States potentially could violate Title IX in

ways unrelated to the Final Rule, which might render them ineligible for federal funding.

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Accordingly, a more accurate way to characterize this declaratory relief is that the Plaintiff States,

their political subdivisions, and their recipient schools need not comply with the Rule to receive

federal funding.

V.

Based on the foregoing analysis, and incorporating the Court’s June 17, 2024 and July 10,

2024 Memorandum Opinions and Orders [Record Nos. 100, 117] by reference, it is hereby

ORDERED as follows:

1. The motion for summary judgment filed by Plaintiffs Commonwealth of Kentucky,

Commonwealth of Virginia, State of Indiana, State of Tennessee, and State of West Virginia

[Record No. 126] is GRANTED.

2. The motion for summary judgment filed Intervenor Plaintiffs Christian Educators

Association International and A.C. [Record No. 127] is GRANTED.

3. The cross-motion for summary judgment filed by Miguel Cardona and the United

States Department of Education [Record No. 134] is DENIED.

Dated: January 9, 2025.

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