The U.S. Department of Education will review its regulations and policies related to Title IX, the federal law that prohibits sex discrimination in K-12 schools, colleges, and university.
The review, which follows an executive order by President Joe Biden, could lead to revisions of a Trump-era rule on how schools must address reports of sexual assault and harassment. The process could also help determine how the agency defines unfair treatment on the basis of sexual orientation or gender identity in K-12 education.
“Experiencing sex discrimination in any form can derail a student’s opportunity to learn, participate, and thrive in and outside of the classroom, including in extracurricular activities and other educational settings,” acting Assistant Secretary for Civil Rights Suzanne Goldberg said in a Tuesday letter to educators and officials announcing the review.
The process will include a public hearing to collect oral and written comments from educators, students, and members of the public, the letter says. The date for that hearing has not been announced.
Later, the agency intends to post notice of any planned revisions to the existing Title IX regulations in the Federal Register, going through a formal review process that allows for public feedback. That differs from some past nonbinding “Dear Colleague” letters, through which some past administrations detailed how they would enforce civil rights laws.
Until it is formally replaced or revised, the Title IX rule announced by former U.S. Secretary of Education Betsy DeVos in May 2020 remains in place, Goldberg said. But the agency plans to release a question-and-answer document to detail how its office for civil rights “interprets schools’ existing obligations under the 2020 amendments, including the areas in which schools have discretion in their procedures for responding to reports of sexual harassment,” the letter said.
Sexual harassment, LGBTQ rights in schools
DeVos introduced the existing rule, which she considered one of her most significant accomplishments, after several years of meetings with assault survivors, students who said they’d been falsely accused, advocacy groups, and educators. It replaced nonbinding guidance issued under the Obama administration that DeVos criticized for potentially infringing on the due-process rights of the accused.
Critics said that revision weakened protections for victims of assault and harassment in schools. Among other things, it allowed schools to shift the threshold that officials use to decide if an assault claim requires a response, from the “preponderance of evidence” standard set under the Obama administration to a “clear and convincing evidence” standard, which is a higher bar to prove claims of misconduct.
Biden, who pledged to rescind that directive as a candidate, issued an executive order March 8 that called for a full review.
“It is the policy of my Administration that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity,” the order said.
The Biden administration’s review may also lead to new guidance or enforcement policies on the rights of lesbian, gay, bisexual, transgender, and queer students. And that guidance could leave some schools wedged between conflicting state and federal interpretations of the law. Legislators around the country, for example, are considering bills that would introduce new restrictions for transgender students in sports and in the classroom. Arkansas, Mississippi, and Idaho have all prohibited transgender girls from playing on girls sports teams.
In a recent memo to federal agencies, the U.S. Department of Justice said Title IX protects students from discrimination on the basis of sexual orientation and gender identity. That memo cited a June decision by the U.S. Supreme Court in Bostock v. Clayton County, which held that an employer who fires a worker merely for being gay or transgender violates Title VII, a federal law that prohibits discrimination on the basis of sex in employment situations.
Several appellate courts have subsequently cited that precedent when they found policies limiting transgender students’ restroom access at school violated the sex discrimination protections in Title IX, that memo said. Because of the expansive nature of federal civil rights laws, policies related to LGBTQ students under Title IX could address issues like bullying, school facilities, and participation on athletic teams.
The Obama administration touched on the issue most directly when it issued nonbinding guidance in May 2016, directing schools to allow transgender students to use the restrooms, locker rooms, and pronouns that align with their gender identity.
In one of her first official acts as secretary, DeVos rescinded that guidance and said those issues should be left to states and districts. But the Trump administration later weighed in on federal lawsuits concerning the issue, arguing against transgender students involved in the cases.
LGBTQ advocates believe the 2020 Supreme Court decision on employment adds weight to growing legal precedent on the rights of LGBTQ students.
