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Legal experts were not surprised last month when a federal judge in Tennessee temporarily blocked the U.S. Department of Education from enforcing directives aimed at protecting LGBTQ students in K-12 colleges and schools in parts of the country.
After Total, came a decision from a conservative district court. He favored the 20 mostly Republican states that sued last year. They argued that the Ed Department’s recommendations under Title IX, the federal law that prohibits discrimination based on sex, interfered with their ability to govern.
The department has determined that Title IX protects students based on their gender identity and sexual orientation. Under this interpretation, transgender students would be allowed to use the restrooms and school locker rooms of their choice. This was clearly against the laws of some states.
However, the decision also spells trouble for the Biden administration’s broader agenda of using Title IX to combat LGBTQ discrimination. Ed Department last month made a proposal which would strengthen regulations to protect gay and transgender students under Title IX.
This draft rule will almost certainly face the courts as well. Conservative attorneys general threatened to sue even before it was published this year, write to the publishing department they will “take judicial action to uphold the plain meaning of Title IX and protect the integrity of women’s sports.” The new draft rule has largely sidestepped this particular issue for now.
Advocates and legal experts said the Ed Department has taken steps to insulate its regulatory plan from legal challenges, but lawsuits aimed at protecting LGBTQ people could overshadow and undermine changes that are widely seen as positive.
“There are new and interesting elements here, and the problem is we’re not talking about it,” said Andrea Stagg, director of consulting services at Grand River Solutions, which advises colleges on issues such as Title IX and equity.
The new ruling is long overdue
President Joe Biden promised on the campaign trail to repeal the current Title IX regulations put in place by former Education Secretary Betsy DeVos.
DeVos echoed the arguments of rights advocates that the federal government’s Title IX policies were skewed against the accused students. The rule, which took effect in August 2020, provides for a court-like method of evaluating sexual misconduct reports, which involves a live hearing with cross-examination by counsel for the accused student and the accuser.
Colleges under Biden’s plan, Title IX, can decide on sexual assault decisions through a hearing. Or they could follow the so-called single-investigator model, in which one official reviews the allegations and makes the decision — though that system caused criticism for being more error-prone and potentially curtailing due process rights.
The Ed Department wrapped its proposal in a mammoth 700-page regulatory document.
One reason the document is so long is its preamble, which justifies every part of the Department’s draft rule ed.
It was almost certainly written to be deliberately exhaustive in case the department needed to defend its case for the draft rule in court, said Jake Sapp, Austin College’s deputy Title IX coordinator and a compliance officer who tracks matters related to the legislation.
Such was the case with DeVos’s regulation, which the Trump Ed Department also amended with a sweeping preamble. This proved necessary for both states and advocacy organizations and students sued to stop it from taking effect.
Just one part of the DeVos era rule was declared illegal. This provision dictated that when colleges hear sexual assault cases, they cannot consider statements from parties or witnesses who were not cross-examined during the hearing. Colleges no longer have to follow this part of the rule.
Stagg said she predicts the preamble in Biden’s final rule will be even longer. And that trend is likely to continue in future administrations seeking to regulate Title IX, she said.
“The thing is, I’ve done more homework than you,” she said.
A division of the Department of Education also declined to seek safeguards for transgender students in athletics, saying it would introduce them during a separate rule. Sapp said it also could have saved the draft regulation.
The legal landscape for higher education in general has become more complex, said Erin Butcher, an attorney at the law firm Bricker & Eckler.
With issues like gender identity so politically polarized, you can expect a White House that tries to strengthen or diminish LGBTQ rights in the future to be sued, Butcher said.
Whether colleges should be involved in these cases is another matter, she said. She said she advises her clients to consider whether to sign the lawsuits. It depends on whether they have the money or political capital to fight against state or federal regulations, she said.
“From a risk management perspective, I think it’s a very exciting time,” Butcher said.
What’s in the rules?
The Department of Education included many provisions in the regulation, some of which are not widely discussed, as Stagg noted.
The department emphasized that the draft rule would protect pregnant students from discrimination, but did not go into detail.
Examining the document, the pregnancy requirements are very specific, such as requiring colleges to create a lactation space, other than a restroom, “that was clean, shielded from view, free from outside intrusion.” Facilities would also need to allocate time for staff to express breast milk.
However, flaws remain in the proposed regulation, Stagg said. She hopes they will be mentioned during the 60-day public comment period. First, the draft rules’ definition of “student” seems too broad, Stagg said — it’s someone who has “received admission.”
Not every accepted applicant even sets foot on campus, Stagg said. She asked how institutions can deal with sexual violence against such students.
“Logistically, how would you even communicate Title IX to a college with tens of thousands of applicants?” she said.
After the two-month comment period ends, the department will move to finalize the rule. That likely won’t happen for many months, however, as the agency must respond to feedback on the latest iteration of the rules.
DeVos’ final rule was introduced a year and a half after the draft version.
