New Jersey, Multistate Coalition Seek to Stop Other States from Delaying Education Department’s Final Rule Protecting Students

Amicus Brief

TRENTON – Attorney General Matthew J. Platkin and the Division on Civil Rights (DCR) announced today that, together with California and Pennsylvania, they have filed the first of several amicus briefs defending Title IX, the landmark law prohibiting sex-based discrimination in education, from yet another federal court challenge that threatens the rights of students in schools and colleges nationwide.

The U.S. Department of Education recently issued a new Final Rule, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, which followed a suit by New Jersey and state partners seeking reversal of the previous administration’s rollback of Title IX protections relating to sexual assault and sexual harassment in K-12 schools, colleges, and universities.

Days after the Final Rule was released, a group of states—Tennessee, Kentucky, Ohio, Virginia, Indiana, and West Virginia—sued the U.S. Department of Education in an effort to block implementation of the entire Final Rule, and return to the insufficient 2020 standards, because the Final Rule explicitly protects transgender students, and rectifies the harm caused when the prior administration narrowed the scope of Title IX’s protections. Their narrow interpretation of Title IX is not supported by law or by the U.S. Department of Education’s longstanding policy and practice.

“Enough is enough,” said Attorney General Platkin. “We need policies that durably ensure fair and nondiscriminatory treatment of all students nationwide, and do not change with the political winds. We’re thankful for strong federal protections for students against sex discrimination and sexual harassment, and we are proud to continue paving the way to ensure those protections remain intact.”

“The experiences of New Jersey and our state partners have long demonstrated that school antidiscrimination laws are necessary to protect students from bias and harassment, and to protect student safety and privacy,” said Sundeep Iyer, Director of the Division on Civil Rights. “All students deserve protection from discrimination on the basis of gender identity or expression, no matter where they live.”

In the amicus brief, filed in the U.S. District Court in the Eastern District of Kentucky, the coalition of Attorneys General argue that:

• The Final Rule’s definitions of sex and sex discrimination align with the text and judicial interpretations of Title IX. The Final Rule’s ban on gender identity discrimination against students fulfills the purpose of Title IX. In addition, sex-based harassment need not be both severe and pervasive to violate Title IX, as the plaintiffs argue. As outlined in the rule, ED’s policy and practices have long used a “severe or pervasive” standard to prevent and stop school-based sexual harassment and ensure equal access to education.
• The Final Rule does not violate the Spending Clause of the Constitution. The Final Rule does not require states to create new programs; it merely requires that they refrain from discriminating against students on the basis of sex, and fix any discrimination they may find, in return for accepting Title IX funding.
• As shown by schools and universities in the states signing on to today’s action, implementation of the Final Rule will benefit students nationwide. The prior rule made students of all gender identities and expressions less safe, and the clarity in the new Final Rule will especially protect transgender and gender nonconforming students, who are among the most vulnerable populations in our schools.

A return to 2020’s regulatory efforts to narrow Title IX would impose significant costs on local and state governments when students experience increased or uncorrected incidents of sexual harassment, including financial, health, and societal costs, increased absenteeism, lost revenue from dropouts, and unemployment and health service costs.

Since 2020, New Jersey, California, and Pennsylvania have led litigation against the prior administration’s efforts to weaken Title IX, including submission of a comment letter in support of the U.S. Department of Education in 2022 when it moved to reverse those 2020 changes.

Today’s amicus brief was led by Attorney General Platkin, California Attorney General Rob Bonta, and Pennsylvania Attorney General Michelle Henry. They were joined by the Attorneys General of  Colorado, Delaware, Hawaii, Illinois, Massachusetts, Michigan, Minnesota, New York, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia.

This matter is being handled by Assistant Section Chief Andrew Yang and Deputy Attorneys General Amanda Morejón, Giancarlo Piccinini, and Lauren Van Driesen, under the supervision of Section Chief Jessica Palmer and Assistant Attorney General David Leit, of the Special Litigation Section within the Division of Law’s Affirmative Civil Enforcement Practice Group.

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DCR is the state agency responsible for preventing and eliminating discrimination and bias-based harassment in employment, housing, and places of public accommodation (e.g., places open to the public like schools, businesses, hospitals, etc.). DCR enforces the New Jersey Law Against Discrimination (LAD), the New Jersey Family Leave Act, and the Fair Chance in Housing Act (FCHA).

DCR has developed various fact sheets about the LAD’s protections against discrimination based on sexual orientation, gender identity, or expression in housing, employment, and places open to the public. To find out more information, visit www.njoag.gov/about/divisions-and-offices/division-on-civil-rights-home/.

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