Department of Education v. Louisiana

P R E L I M I N A R Y P R I N T
Volume 603 U. S. Part 1
Pages 866–876
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
August 16, 2024
REBECCA A. WOMELDORF
reporter of decisions
Page Proof Pending Publication
N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

Page Proof Pending Publication
866 OCTOBER
TERM, 2024
DEPARTMENT OF EDUCATION et al. v. LOUISIANA
et
al.
on application for stay
No. 24A78. Decided August 16, 2024
1
Several States and other parties obtained preliminary injunctions against
the enforcement of the Department of Education's new rule implement-
ing Title IX of the Education Amendments of 1972. The Fifth and
Sixth Circuits declined to stay the injunctions at the Government's re-
quest. The Government then fled emergency applications in this Court
seeking partial stays of the preliminary injunctions pending appellate
proceedings. The Government argues that three provisions in the new
rule on which the courts below based plaintiffs' entitlement to prelimi-
nary injunctive relief should be severed and that the other provisions
of the new rule should be permitted to take effect.
Held: All Members of the Court accept that plaintiffs were entitled to
preliminary injunctive relief as to three provisions of the new rule, in-
cluding the central provision that newly defnes sex discrimination to
include discrimination on the basis of sexual orientation and gender
identity. The Government has neither provided a suffcient basis to dis-
turb the lower courts' interim conclusions that the three provisions
found likely to be unlawful are intertwined with other provisions of the
rule, nor has it adequately identifed which particular provisions, if any,
might be able to remain in effect.
Applications for stays denied.
Per Curiam.
The application for a partial stay presented to Justice
Alito in No. 24A78 and by him referred to the Court is de-
nied. The application for a partial stay presented to Jus-
tice Kavanaugh in No. 24A79 and by him referred to the
Court is denied.
The Department of Education recently issued a new rule
implementing Title IX of the Education Amendments of
1
Together with No. 24A79, Cardona, Secretary of Education, et al. v.
Tennessee et al., also on application for stay.

Cite
as: 603 U. S. 866 (2024)
867
Per Curiam
1972. The rule newly defned sex discrimination to “in-
c
lud[e] discr i mi nati on on the basis of sex stereoty pes,
sex characteristics, pregnancy or related conditions, sexual
or ient ati on, and gender identity. ” 89 Fed. Reg. 33886
(2024).
Several States and other parties sought preliminary in-
junctions against the new rule, arguing among other things
that the rule exceeded the bounds of the statutory text
enacted by Congress. District Courts in Louisiana and
Kentucky agreed with the plaintiffs and preliminarily en-
joined enforcement of the rule in the plaintiff States. The
Courts of Appeals for the Fifth and Sixth Circuits then de-
clined to stay the injunctions in the interim period while
those courts consider the Government's appeals of the pre-
liminary injunctions.
The Government has now fled emergency applications in
this Court seeking partial stays of the preliminary injunc-
tions pending resolution of the appeals in the Fifth and Sixth
Circuits. The Court denies the Government's applications.
Importantly, all Members of the Court today accept that
the plaintiffs were entitled to preliminary injunctive relief
as to three provisions of the rule, including the central provi-
sion that newly defnes sex discrimination to include discrim-
ination on the basis of sexual orientation and gender identity.
But the Government argues (and the dissent agrees) that
those provisions should be severed and that the other provi-
sions of the new rule should still be permitted to take effect
in the interim period while the Government's appeals of the
preliminary injunctions are pending in the Courts of Ap-
peals. The lower courts concluded otherwise because the
new defnition of sex discrimination is intertwined with and
affects many other provisions of the new rule. Those courts
therefore concluded, at least at this preliminary stage, that
the allegedly unlawful provisions are not readily severable
from the remaining provisions. The lower courts also
Page Proof Pending Publication

868 DEP
ARTMENT OF EDUCATION v. LOUISIANA
Sotomayor, J., dissenting in part
pointed out the diffculty that schools would face in deter-
mi
ning how to apply the rule for a temporary period with
some provisions in effect and some enjoined.
In this emergency posture in this Court, the burden is on
the Government as applicant to show, among other things, a
likelihood of success on its severability argument and that
the equities favor a stay. On this limited record and in its
emergency applications, the Government has not provided
this Court a suffcient basis to disturb the lower courts' in-
terim conclusions that the three provisions found likely to be
unlawful are intertwined with and affect other provisions of
the rule. Nor has the Government adequately identifed
which particular provisions, if any, are suffciently independ-
ent of the enjoined defnitional provision and thus might be
able to remain in effect. Moreover, related to the equities,
the Sixth Circuit has already expedited its consideration of
the case and scheduled oral argument for October. The
Court expects that the Courts of Appeals will render their
decisions with appropriate dispatch. In light of all of the
circumstances, the Court denies the Government's applica-
tions for partial stays.
It is so ordered.
Justice Sotomayor, with whom Justice Kagan, Jus-
tice Gorsuch, and Justice Jackson join, dissenting in
part.
Respondents challenged a Department of Education rule
implementing Title IX of the Education Amendments of 1972.
Respondents contend that the rule unlawfully redefnes sex
discrimination; that it violates students' and employees' rights
to bodily privacy and safety; and that its defnition of hostile
environment harassment is inconsistent with the statute and
violates the First Amendment. Every Member of the Court
agrees respondents are entitled to interim relief as to three
provisions of that Rule: 34 CFR § 106.10 (2024) (defning sex
Page Proof Pending Publication

Cite
as: 603 U. S. 866 (2024)
869
Sotomayor, J., dissenting in part
discrimination), § 106.31(a)(2) (prohibiting schools from pre-
venti
ng individuals from accessing certain sex-separated
spaces consistent with their gender identity), and § 106.2's
defnition of hostile environment harassment. Respondents'
alleged injuries fow from those three provisions.
Today, however, a majority of this Court leaves in place
preliminary injunctions that bar the Government from en-
forcing the entire rule—including provisions that bear no ap-
parent relationship to respondents' alleged injuries. Those
injunctions are overbroad. To be sure, this litigation is still
unfolding, and respondents might eventually show injuries
from the other portions of the rule. If so, those injuries
might merit further relief. For now, on the briefng and rec-
ord currently before us, I would stay the preliminary injunc-
tions except as to the three provisions above, in keeping with
the traditional principle of equitable remedies that “relief af-
forded [to] the plaintiffs” must not “be more burdensome
than necessary to redress the complaining parties.” Cali-
fano v. Yamasaki, 442 U. S. 682, 702 (1979); see Madsen v.
Women's Health Center, Inc., 512 U. S. 753, 765 (1994) (“[An]
injunction [should be] no broader than necessary to achieve
its desired goals”).
I
Title IX provides that “[n]o person in the United States
shall, on the basis of sex, be excluded from participation in,
be denied the benefts of, or be subjected to discrimination
under any education program or activity receiving Federal
fnancial assistance.” 86 Stat. 373, 20 U. S. C. § 1681(a).
Congress charged the Department of Education with “issu-
ing rules, regulations, or orders of general applicability” to
“effectuate” Title IX's antidiscrimination mandate. § 1682.
Pursuant to that authority, in April 2024, the Department
issued an omnibus rule amending Title IX's regulations, set
to take effect nationwide on August 1, 2024. See 89 Fed.
Reg. 33474 (2024) (Rule). The amended provisions of the
Page Proof Pending Publication

Page Proof Pending Publication
870 DEP
ARTMENT OF EDUCATION v. LOUISIANA
Sotomayor, J., dissenting in part
Rule cover a range of matters, most of which do not refer-
ence
gender identity discrimination and went unmentioned
by respondents.
1
Respondents claim they are harmed by three provisions of
the Rule. First, at 34 CFR § 106.10, the Rule defnes “[d]is-
crimination on the basis of sex” to “includ[e] discrimination
on the basis of sex stereotypes, sex characteristics, preg-
nancy or related conditions, sexual orientation, and gender
identity.” 89 Fed. Reg. 33886. Second, at § 106.31(a)(2),
the Rule addresses Title IX's application in sex-separated
spaces. 89 Fed. Reg. 33887. The Rule leaves untouched
Title IX's explicit recognition that schools may differentiate
between students on the basis of sex in some contexts, such
as in assigning dormitories and creating athletic teams.
2
1
Those provisions include: a provision requiring access to lactation
spaces and “reasonable modifcations” for pregnant students, such as rest-
room breaks, 89 Fed. Reg. 33888, 33895–33896 (to be codifed in 34 CFR
§§ 106.40(b)(3)(v), 106.57); a provision affrming the legal rights of parents
and guardians to act on behalf of complainants and respondents, 89 Fed.
Reg. 33885 (to be codifed in 34 CFR § 106.6(g)); three provisions address-
ing schools' obligations in responding to claims implicating Title IX, in-
cluding measures to assist impacted parties, employee-notifcation require-
ments, Title IX coordinator duties, applicable grievance procedures, and
protection of personally identifable information, 89 Fed. Reg. 33888–33895
(to be codifed in 34 CFR §§ 106.44, 106.45, 106.46); a provision addressing
schools' obligations to designate Title IX coordinators, and adopt and im-
plement a nondiscrimination policy and grievance procedures, 89 Fed. Reg.
33885–33886 (to be codifed in 34 CFR § 106.8); a provision clarifying
schools' obligations with respect to retaliation, 89 Fed. Reg. 33896 (to be
codifed in 34 CFR § 106.71); a provision clarifying that the Department of
Education's Assistant Secretary of Civil Rights will not deem a recipient
to have violated the Title IX regulations solely because the Assistant Sec-
retary would have reached a different decision in a particular complaint
alleging sex-based harassment, 89 Fed. Reg. 33895 (to be codifed in 34
CFR § 106.47); and a provision addressing what preemployment inquiries
a school may make regarding an individual's marital status and sex, 89
Fed. Reg. 33896 (to be codifed in 34 CFR § 106.60).
2
Specifcally, those contexts include membership in fraternities or soror-
ities, 20 U. S. C. § 1681(a)(6), separate living facilities, § 1686, and athletic
teams, Education Amendments of 1974, 88 Stat. 612. The Department

Cite
as: 603 U. S. 866 (2024)
871
Sotomayor, J., dissenting in part
Outside those statutory exceptions, however, § 106.31(a)(2)
st
ates that Title IX generally permits “different treatment
or separation on the basis of sex” only to the extent that
such differential treatment or separation does not “discrimi-
nat[e]. . . by subjecting a person to more than de minimis
harm.” Section 106.31(a)(2) further provides that a policy
or 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.” (Emphasis added.) Sections
106.10 and 106.31(a)(2) are the only provisions in the entire
Rule that reference “gender identity.”
Third, at 34 CFR § 106.2, the Rule defnes several terms,
including “hostile environment harassment.” 89 Fed. Reg.
33884. “Hostile environment harassment” is a prohibited
form of sex discrimination that, as defned by the Rule, in-
volves “[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 beneft from the recipi-
ent's education program or activity (i.e., creates a hostile en-
vironment).” Ibid. Respondents do not object to § 106.2's
defnitions of other terms within the Rule, such as “com-
plaint,” “disciplinary sanctions,” “elementary school,” and
“student.”
Two groups of States fled suits in two District Courts
challenging the new Rule as unlawful.
3
They contend that
explained in the Rule that neither § 106.31(a)(2) nor anything else in the
Rule addresses or alters existing requirements governing sex separation
in athletics, which is the subject of a separate rulemaking. 89 Fed. Reg.
33816–33817.
3
One suit was brought by the States of Louisiana, Mississippi, Montana,
and Idaho, joined by the Louisiana Department of Education and 18 Louisi-
ana school boards. Another suit was brought by the states of Tennessee,
Kentucky, Ohio, Indiana, Virginia, and West Virginia, joined by an associa-
tion of Christian teachers and a 15-year-old girl from West Virginia. Sev-
eral other States and parties have fled similar suits challenging the Rule
and requesting preliminary injunctions within the plaintiff States. See
Page Proof Pending Publication

872 DEP
ARTMENT OF EDUCATION v. LOUISIANA
Sotomayor, J., dissenting in part
the Rule unlawfully rewrites Title IX's prohibition on sex
discr
imination to include discrimination based on students'
gender identity. Respondents further argue that § 106.2's
defnition of “hostile environment harassment” is unlawful
under Davis v. Monroe County Bd. of Ed., 526 U. S. 629
(1999), because it waters down the standard for what consti-
tutes actionable sex-based harassment: Title IX complain-
ants can prevail under the Rule by showing the alleged har-
assment was severe or pervasive (as opposed to both) and do
not need to prove that the offending conduct denied them
access to educational benefts. Respondents separately as-
sert that § 106.2's defnition of “hostile environment harass-
ment” violates the First Amendment by chilling or compel-
ling speech, including on issues of gender identity.
Accordingly, when respondents asked the District Courts
to preliminarily enjoin enforcement of the Rule, they focused
on the two provisions concerning gender identity—§§ 106.10
and 106.31(a)(2)—and § 106.2's defnition of “hostile environ-
ment harassment.” Respondents alleged that those three
provisions would cause them irreparable harm if the Rule
went into effect. Specifcally, they asserted that they would
incur unrecoverable costs in complying with those provisions
(and a loss of Title IX funding if they failed to do so), that
they would lose the right to speak freely on issues such as
gender identity, and that they would be unable to enforce
existing state laws that confict with the Rule's prohibition
of gender identity discrimination. Although respondents'
alleged irreparable harm apparently traces back to just three
of the Rule's provisions, the District Courts preliminarily
Kansas v. United States Dept. of Ed., ––– F. Supp. 3d –––, 2024 WL
3273285 (D Kan., July 2, 2024); Texas v. United States, ––– F. Supp. 3d –––,
2024 WL 3405342 (ND Tex., July 11, 2024); Carroll Independent School
Dist. v. United States Dept. of Ed., ––– F. Supp. 3d –––, 2024 WL 3381901
(ND Tex., July 11, 2024); Arkansas v. United States Dept. of Ed., No. 4:24–
CV–636 (ED Mo., July 24, 2024), ECF Doc. 54; Alabama v. Cardona, 2024
WL 3607492 (ND Ala., July 30, 2024).
Page Proof Pending Publication

Cite
as: 603 U. S. 866 (2024)
873
Sotomayor, J., dissenting in part
enjoined the Government from enforcing the entire Rule in
a
ll the respondent States.
After unsuccessful efforts to seek relief from these over-
broad injunctions in the lower courts, the Government asks
this Court to stay the injunctions in part. The Government
does not contest the continued injunction as to § 106.31(a)(2)
(regulating access to sex-separated spaces) or § 106.2's def-
nition of hostile environment harassment as applied to gen-
der identity discrimination. Instead, it asks this Court to
stay the injunction as to § 106.2's defnition of hostile environ-
ment harassment as applied to other forms of sex discrimina-
tion, § 106.2's other defnitions, § 106.10, and the remainder of
the Rule's unchallenged provisions.
II
I would grant most of the Government's stay requests and
leave enjoined only its enforcement of the three challenged
provisions.
4
A preliminary injunction is an “extraordinary”
exercise of equitable authority, appropriate only “upon a
clear showing ” that a party is “entitled to such relief.”
Winter v. Natural Resources Defense Council, Inc., 555 U. S.
7, 22 (2008). To obtain a preliminary injunction, a party
must establish, among other things, that it would likely suf-
fer irreparable harm without equitable relief. Ibid. Even
when a party makes that showing, though, a court must tai-
lor equitable relief to redress the party's alleged injuries
without burdening the defendant more than necessary. See
Madsen, 512 U. S., at 765 (“[An] injunction [should be] no
broader than necessary to achieve its desired goals”); Yama-
saki, 442 U. S., at 702 (explaining that “relief afforded [to] the
plaintiffs” must not “be more burdensome than necessary to
redress the complaining parties”).
Here, respondents' alleged injuries fow from the chal-
lenged provisions. Even assuming respondents established
4
For § 106.2, I would leave enjoined only its defnition of “hostile envi-
ronment harassment.”
Page Proof Pending Publication

874 DEP
ARTMENT OF EDUCATION v. LOUISIANA
Sotomayor, J., dissenting in part
that those provisions subject them to a threat of irreparable
har
m, enjoining enforcement of the entire Rule appears to
go beyond what was necessary to redress those injuries.
Consider some of the unchallenged provisions. The Rule
requires schools to provide “reasonable modifcations” to
pregnant students, including but not limited to “breaks dur-
ing class to express breast milk, breastfeed, or attend to
health needs associated with pregnancy or related condi-
tions.” 89 Fed. Reg. 33887. A separate provision prohibits
schools from making a preemployment inquiry as to an appli-
cant's marital status and limits the circumstances under
which a school may make a preemployment inquiry as to an
applicant's sex. Id., at 33896. The Rule also mandates that
schools prohibit staff and students from retaliating against
students who fle Title IX complaints, and provides the pro-
cedure a school must follow upon receiving a complaint of
retaliation. Ibid. Those provisions (like many others in
the Rule) do not reference gender identity discrimination or
hostile environment harassment and bear no apparent rela-
tionship to respondents' alleged injuries. As litigation over
the Rule proceeds, respondents might be able to show those
other portions of the Rule will irreparably harm them in a
manner justifying further equitable relief. At this juncture,
however, enjoining the application of any other part of the
Rule needlessly impairs the Government from enforcing
Title IX and deprives potential claimants of protections
against forms of sex discrimination not at issue in respond-
ents' suit.
Respondents maintain that the Government must remain
enjoined from enforcing the entire Rule because the chal-
lenged provisions “permeate” it. Respondents fail to ex-
plain, however, why enjoining enforcement of the entire Rule
at this stage is necessary to redress their alleged injuries.
As an initial matter, many unchallenged provisions (such as
those governing preemployment inquiries about an appli-
cant's marital status or sex and prohibiting pregnancy dis-
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 603 U. S. 866 (2024)
875
Sotomayor, J., dissenting in part
crimination) include no reference to gender identity discrimi-
nati
on or hostile environment harassment. Respondents
offer nothing to justify preventing the Government from en-
forcing those parts of the Rule. As for the provisions that
do incorporate the Department's allegedly unlawful defni-
tions of sex-based discrimination and harassment, respond-
ents do not explain how those provisions would injure them
while the Government is enjoined from enforcing the dis-
puted defnitions. Take the Rule's requirement that em-
ployees be trained on “[t]he scope of conduct that constitutes
sex discrimination under Title IX and this part, includ-
ing the defnition of sex-based harassment.” 89 Fed. Reg.
33886. Even respondents do not argue that the training re-
quirement is itself unlawful. With the challenged provisions
out of the picture, the “scope of conduct” under that training
provision would exclude gender identity discrimination and
hostile environment harassment, the sources of respondents'
alleged injuries. If there were any doubt on this score,
moreover, the Court could simply have excluded the provi-
sion from its stay order.
Respondents further assert that the Rule would be un-
workable with the Government enjoined from applying its
defnition of sex discrimination. For 50 years, however,
Title IX regulations have not defned sex discrimination, and
respondents offer no evidence that schools cannot comply
with their Title IX obligations without such a defnition.
***
By blocking the Government from enforcing scores of reg-
ulations that respondents never challenged and that bear no
apparent relationship to respondents' alleged injuries, the
lower courts went beyond their authority to remedy the dis-
crete harms alleged here. The injunctions this Court leaves
in place will burden the Government more than necessary.
The injunctions will also affect the public. Individuals in
the respondent States will be deprived of guidance related

876 DEP
ARTMENT OF EDUCATION v. LOUISIANA
Sotomayor, J., dissenting in part
to their rights under Title IX, of updates to the processes
schools
must follow in investigating their complaints of sex
discrimination, of protections from retaliation should they
fle a complaint, and of much more. On the present record,
more tailored relief focused on the three challenged provi-
sions would have redressed respondents' alleged injuries
without depriving the public of the Rule's other provisions.
Because the majority of this Court nonetheless leaves the
overly broad injunctions in place, I respectfully dissent in
part.
Page Proof Pending Publication

Page Proof Pending Publication
Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None