Education Department Formally Repeals 2024 Title IX Rule, Formalizes 2020 Rule Status Quo

The U.S. Department of Education published a final rule (2026 Rule) on September 29, 2026 (following the posting of an unpublished version on September 28, 2026), that formally rescinded the Biden Administration's 2024 Title IX regulations and restored the regulatory framework that existed before the 2024 rulemaking.

As Holland & Knight previously explained, the 2024 Biden Administration regulations were effectively halted and later vacated nationwide by federal court litigation, nullifying the 2024 regulations and allowing the Education Department to enforce the 2020 regulations. The September 29 rulemaking formally codifies that status by removing the vacated text from the Code of Federal Regulations and restoring the regulatory framework the Education Department has been applying since early 2025. The Education Department states in the preamble to the 2026 Rule that this action is intended to provide clear guidance for parents, students and educational institutions on the legal requirements of Title IX by aligning the codified text with operative law.

For schools, the practical result is that the regulations now formally match the enforcement position the Education Department has publicly maintained since early 2025. Institutions should continue to look to the 2020 Title IX framework – not the 2024 regulations – in assessing their compliance obligations.

Changes to the Regulations

The Executive Summary of the preamble to the 2026 Rule notes that there are four "minor" differences between the 2020 Rule and 2026 Rule. One of those changes eliminated a cross-reference to an obsolete guidance document, and two of the changes eliminated outdated phase-in compliance deadlines that were decades old.

The remaining change is facially substantive in that the 2026 Rule omits a provision of the 2020 Rule that prohibited decision-makers from relying on statements by parties or witnesses who did not submit to cross-examination at a live hearing. Specifically, the Education Department did not reinstate a two-clause sentence from Section 106.45(b)(6)(i) of the 2020 Rule, which stated first that "[i]f a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility," and second that "however, … the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party's or witness's absence from the live hearing or refusal to answer cross-examination or other questions."

The evidence-related clause was vacated in 2021 in the Victim Rights Law Center v. Cardona case in which the U.S. District Court for the District of Massachusetts held that the prohibition against considering any statements from parties or witnesses not subject to cross-examination was arbitrary and capricious under the Administrative Procedure Act (APA). Although the court vacated only the evidence-related clause, the Education Department removed the "no adverse inference" clause from the 2026 Rule as well. This is noteworthy because in the preamble to the 2020 Rule, the Education Department emphasized that the "no adverse inference" language was designed to protect respondents' Fifth Amendment rights in cases where they faced criminal prosecution for the alleged conduct at issue in a Title IX proceeding. The Education Department explained in the preamble to the 2026 Rule that removing only the evidence-related clause but retaining the "no adverse inference" clause risked altering the Education Department's intent when drafting the 2020 Rule.

It is also noteworthy that although most higher education institutions deleted the evidence-related clause from their policy language when the VRLC v. Cardona decision was issued, many retained the "no adverse inference" clause. Any institution considering a policy change based on the 2026 Rule's omission of the "no adverse inference" clause should remember that the 2020 and 2026 Rules, at 34 C.F.R. § 106.71, continue to require equitable treatment of parties, and they prohibit retaliation against individuals because they participate in, or refuse to participate in, Title IX proceedings. Colleges and universities that currently include the "no adverse inference" language in their policies should consult with legal counsel about whether they should delete that language in light of the 2026 Rule and how to navigate potential inference-related issues in practice given the language of Section 106.71.

Effective Date

The Education Department declared in the preamble that it has the authority under the APA to promulgate the 2026 Rule without the delay that would be entailed in notice-and-comment rulemaking, essentially on the rationale that the changes are minor and are simply conforming the Federal Register record with the practical state of the law. Accordingly, the Education Department made the 2026 Rule effective immediately.

Education Department's Statement on Sex-Separated Facilities

Although the Education Department characterized the 2026 Rule as largely administrative, its accompanying public statements provide important insight into its current enforcement priorities and interpretation of Title IX.

The Education Department's press release accompanying the publication of the 2026 Rule includes the following statement: "Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in any education program or activity receiving federal financial assistance. This includes female students' rights to single sex bathrooms and locker rooms, and competitive athletic competition restricted to biological female athletes."

This language goes beyond describing sex-separated facilities and athletics as permissible under Title IX. Instead, the Education Department expressly characterizes access to female-only bathrooms, locker rooms and athletic competition as a right held by female students. Although the 2026 Rule itself does not create new requirements governing bathrooms, locker rooms or athletics, the statement provides a significant indication of how the Education Department will likely continue to approach future investigations and enforcement activity in these areas.

Conclusion

For most educational institutions, the 2026 Rule will not require substantial revisions to policies that are consistent with the legal landscape that existed after the nationwide vacatur of the 2024 regulations. Nevertheless, institutions should review their Title IX procedures to ensure they align with the recodified regulations and should continue to monitor guidance and enforcement activity in areas involving sex-separated facilities, athletics and gender identity-related issues, which appear to remain a significant focus of the Education Department going forward.

If you have any questions about the potential impact to your institution, please reach out to the authors or another member of Holland & Knight's Education Team.

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