Legal experts weren’t surprised last month when a federal judge in Tennessee temporarily blocked the U.S. Department of Education from enforcing, in some parts of the country, directives designed to protect LGBTQ students in colleges and K-12 schools.
After all, the ruling came from a conservative circuit court. It favored 20 predominantly Republican states that sued last year. They alleged the Ed Department’s guidance on a federal law banning sex-based discrimination, Title IX, infringed on their ability to govern.
The department had determined Title IX shields students based on their gender identity and sexual orientation. Under that interpretation, transgender students would be permitted to use restrooms and school locker rooms of their choice. This clashed explicitly with some of the states’ laws.
However, the decision also portends trouble for the Biden administration’s broader agenda to use Title IX to combat LGBTQ discrimination. The Ed Department last month introduced a proposal that would cement into regulation protections for gay and transgender students under Title IX.
Almost certainly, that draft rule will face lawsuits, too. Conservative attorneys general threatened to sue even before it was released this year, writing to the Ed Department they would “take legal action to uphold Title IX’s plain meaning and safeguard the integrity of women’s sports.” The new draft rule largely dodged that particular issue for the time being.
The Ed Department has taken steps to insulate its regulatory plan from legal challenges, attorneys and legal experts said, but lawsuits targeting LGBTQ protections could overshadow and undermine changes widely regarded as positive.
“There’s new and interesting elements in there, and it’s a problem that we’re not talking about it,” said Andrea Stagg, director of consulting services at Grand River Solutions, which advises colleges on matters like Title IX and equity.
New regulation a long time coming
President Joe Biden pledged on the campaign trail to undo the current Title IX regulation, put in place by former Education Secretary Betsy DeVos.
DeVos followed due process activists’ arguments that the federal government’s Title IX policies had been tilted against accused students. The rule, which went into force August 2020, constructs a judiciary-like method of evaluating sexual misconduct reports that entails a live hearing with cross-examination by the accused student’s and accuser’s advisers.
Colleges under Biden’s Title IX plan could opt to adjudicate sexual violence cases through a hearing. Or they could pursue what’s known as a single-investigator model, in which one official looks into allegations and renders a decision — though this system has drawn criticism for being more open to error and potentially curtailing due process rights.
The Ed Department wrapped its proposal into a mammoth 700-page regulatory document.
Part of the reason the document is so lengthy is its preamble, which justifies each part of the Ed Department’s draft rule.
It was almost certainly written to be intentionally exhaustive in case the department needed to defend the reasoning behind the draft rule in court, said Jake Sapp, Austin College's deputy Title IX coordinator and compliance officer, who follows matters concerning the law.
Such was the case with DeVos’ regulation, which the Trump Ed Department also supplemented with an extensive preamble. It proved necessary as states, advocacy organizations and students sued to stop it from taking effect.
Only one piece of the DeVos-era rule has been declared unlawful. That provision dictated that when colleges adjudicate sexual violence claims, they could not consider statements made by parties or witnesses who did not submit to cross-examination in a hearing. Colleges no longer have to follow that part of the rule.
Stagg said she predicts the preamble in the final Biden rule to be even longer. And this trend will likely continue with future administrations that seek to regulate Title IX, she said.
“It’ll all be about saying I did more homework than you,” she said.
The Ed Department also declined to pursue safeguards for transgender students in athletics, saying it would introduce them during a separate rulemaking. This was also likely to preserve the draft regulation, Sapp said.
The higher education legal landscape in general has grown more complex, said Erin Butcher, an attorney at the law firm Bricker & Eckler.
With issues such as gender identity so politically polarized, it’s expected a White House attempting to bolster or diminish LGBTQ rights in the future will be sued, Butcher said.
Whether colleges should involve themselves in these cases is a different matter, she said. She said she advises her clients to weigh whether to sign onto lawsuits. It’s dependent on whether they have the money or political capital to fight against state or federal rules, she said.
“From a risk management perspective, it’s a very interesting time, I think,” Butcher said.
What’s in the rule?
The Ed Department stuffed many provisions into the regulation, some of which are not being widely discussed, as Stagg pointed out.
The department stressed the draft rule would safeguard pregnant students from discrimination, but didn’t delve into much detail.
Examining the document, the requirements around pregnancy are highly specific, such as mandating colleges set up a lactation space other than a restroom “that is clean, shielded from view, free from intrusion from others.” Institutions would also need to allot time for employees to express breastmilk.
However, flaws remain in the proposed regulation, Stagg said. She hopes they will be mentioned during a 60-day public comment period. For one, the draft rule’s definition of “student” appears overly broad, Stagg said — it’s someone “who has gained admission.”
Not every admitted applicant even sets foot on campus, Stagg said. She questioned how institutions could address sexual violence against such students.
“Logistically, how would you even communicate about Title IX to colleges with tens of thousands of applicants?” she said.
After the two-month comment period wraps up, the department will move to finalize the rule. That likely will not occur for many months, however, as the agency must respond to the feedback in the final iteration of the regulation.
DeVos’ final rule was introduced a year and a half after the draft version.