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Today, President Joe Biden issued an executive order addressing Title IX, entitled Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity. Unfortunately, the order sheds little light on how the Biden administration intends to change Title IX and, as a result, warrants little practical change for schools, colleges, and universities. The order directs the new Secretary of Education, Miguel Cardona, to “consider” suspending, revising, or rescinding the 2020 Title IX rule, but does not actually take any action with respect to the Trump-era rule. Similarly, it directs Cardona to issue “new guidance” interpreting the rules, but does not provide any actual guidance now. Perhaps the most interesting part of the order is language directing Cardona to consider “additional enforcement actions” to enforce the new administration’s position on Title IX. Does that mean that the Office for Civil Rights will begin taking a different position when investigating Title IX complaints, even before new guidance or rules are issued? As we have discussed before, the most reasonable approach for educational institutions now is to stay the course, implementing the 2020 Title IX rules as written, unless and until the Department says otherwise. Even then, schools, colleges, and universities will need to assess whether new guidance or direction from the Department will adequately protect institutions from legal challenges from those who may prefer the 2020 rules. Because of the statement in the order, however, schools, colleges, and universities should work closely with counsel when they receive a request or internal complaint involving sex-based issues. This is particularly true with respect to LGBTQ+ issues, upon which the Department has taken more concrete policy actions to date.
Continue Reading Biden’s Executive Order on Title IX Warrants Little Practical Change for Schools

President Joseph Biden has been in office for over three weeks, bringing more changes in the realm of Title IX. Where are we now, what do we need to know and do, and what is expected to come? This is the second part of a multi-part series addressing some of the last gasps of the Trump administration and the opening salvos of the Biden administration, and what they mean for school leaders under Title IX. (Find part one here).

Our topic today is diversity, equity, and inclusion in schools, colleges, and universities. This is an important topic under Title IX because DEI initiatives include those supporting LGBTQ students and employees and other sex-based topics. Although the Biden administration has rolled back the most controversial of the Trump team’s orders with respect to DEI initiatives, schools, colleges, and universities should still be cognizant of the potential for lawsuits from private parties who disagree with DEI initiatives. Those challenges should not prevent schools, colleges, and universities from continuing important DEI work, but educational institutions should work closely with legal counsel to craft such programs in the most legally defensible ways.

Part 2: DEI Initiatives in Schools, Colleges, and Universities under Biden

In late 2020, then-President Donald Trump signed an Executive Order attacking what the order described as “anti-American race and sex stereotyping and scapegoating” by federal contractors and recipients of federal grant funds, including schools, colleges, and universities. The order addressed racial and sex sensitivity trainings in employment and in schools. What was the action and what changes have we seen with respect to this issue in the first few weeks of the Biden administration?Continue Reading Last Gasps and Opening Salvos: The End and Beginning of a New Era in Title IX, Part 2

At the beginning of last week, Donald Trump was President of the United States and we were being flooded with last minute Title IX and civil rights guidance from the outgoing Department of Education. As we near the end of the week, Joseph Biden is President and we are digesting a long list of senior political appointees for the department and executive orders signaling a reversal on approaches to racial and LGBTQ equality within federal agencies. Where we are now, what do you need to know and do, and what is expected to come? This is the first part of a multi-part series addressing some of the last gasps of the Trump administration and the opening salvos of the Biden administration and what they mean for school leaders under Title IX.

Part 1: Title IX and Gender Identity and Sexual Orientation After Bostock

Anyone keeping watch on the Department of Education’s actions in the past few weeks knows that the outgoing administration did not intend to go quietly into the night. Instead, we saw a flurry of guidance and other documents issued up to the very final moments of the administration in the realms of civil rights and Title IX. An important example was a  January 8, 2021 memorandum from the Department’s Office of General Counsel stating that LGBTQ students are not covered by Title IX.Continue Reading Last Gasps and Opening Salvos: The End and Beginning of a New Era in Title IX, Part 1

wish listIn recent weeks, I have been lucky enough to be involved in the conversation about what changes the Biden administration should make under Title IX. In addition to informal discussions with colleagues, administrators, and associations, Real Clear Investigations interviewed me for a recent piece. I discussed the pressure that many schools felt under the Obama administration as one reason the Biden team should not simply return us to the Title IX guidance of that era.

Most conversations, including the Real Clear Investigations interview and article, focus primarily on Title IX and higher education. To some extent, that makes sense. There are more Title IX incidents in higher ed. Colleges and universities have and dedicate more resources toward the process. The highest-profile cases of mishandled complaints are from the higher ed space.

But K-12 administrators have been working hard since May 6, 2020, to implement the new Title IX regulations. They are already feeling the real impacts of the new rules in the schoolhouse (whether in-person, hybrid, or virtual). I have trained thousands of administrators during the summer and fall and helped countless others write policies and respond to complaints under the new rules. I have heard time and again how much in the 2020 rules are not workable for K-12 schools. If K-12 administrators had a wish list for the Biden transition team regarding their genuine and unique concerns, what might it be? Here are the top three considerations as I see them.Continue Reading A K-12 Holiday Wish List for The Next “New” Title IX

Over 100 self-described advocates for civil rights and student survivors of sexual assault and harassment recently signed a letter asking President-elect Joe Biden to “stop enforcement” of the new Title IX rules “as soon as [he] takes office.” As discussed elsewhere on this blog, there is an open question about whether such a quick reversal on the Title IX rules is possible. Unless done well, a fast rollback of the rules could put schools, colleges, and universities between a legal rock and a hard place. Some of the other requests in the letter face fewer barriers to implementation. Although the letter is only one source in a crowded discussion about what the Biden administration should do concerning Title IX and civil rights, it is an interesting addition to the discussion of what changes might be afoot under the new administration.
Continue Reading Hundreds of Organizations Ask Biden for Immediate Change in Title IX; How Realistic are the Demands?