photo: whitehouse.gov
POLITICO - Ongoing litigation and unclear guidelines have muddled the administration's efforts to protect transgender students and pregnant students.
Schools are scrambling over how to implement one of President Joe Biden's top civil rights priorities after a tangle of court orders emerged just weeks before students returned to campuses.
The regulation, which goes into effect Thursday, updates federal anti-discrimination law and strengthens protections for transgender students and pregnant students. But nearly half of the states may not follow the new rule because of legal delays, and many others are unsure how to do so - especially since the fate of the law is unclear.
The Department of Education has offered only general guidance, leaving administrators concerned about how to handle complaints of sexual misconduct, and vulnerable students - such as transgender teenagers - wondering whether schools can ensure their safety.
"Many schools feel betrayed," said Brett Sokolow, president of the Association of Title IX Administrators, which supports schools in implementing the policy. "Here's the Department of Education saying you have to use this rule, we've looked into it and it's perfectly legal. And then it turns out a lot of judges don't think so, and schools are like, 'We're caught in the middle'."
Biden's amendments, which change a federal law known as Title IX, overhaul former Education Secretary Betsy DeVos' rule that directs schools how to respond to sexual misconduct. It could prove to be one of Biden's defining policies as he tries to cement his legacy. Administration officials tout the new rule as the "most comprehensive coverage" students will get in more than half a century of Title IX.
The Ministry of Education did not respond to a request for comment
Biden's changes drew praise from civil rights advocates and LGBTQ+ groups, but prompted lawsuits from Republican attorneys general and conservative organizations. The latter claim the new rule weakens the rights of students accused of misconduct and fails to protect gender-segregated programs and spaces, such as locker rooms.
"Biden and Harris's Title IX rule was designed to satisfy the demands of their radical, awakened political base," DeVos said in a statement to POLITICO. "The real losers here are the students and schools who once again find themselves in the middle of a senseless political game - especially the women and girls who are witnessing Title IX being used to take away their rights."
The Biden administration, in an effort to ensure that the rule goes into effect, has asked the Supreme Court to let the Department of Education enforce the rule without provisions that ensure gender identity protections, since that is the primary focus of the legal battles. The Supreme Court could rule as early as this week.
Conservative advocates are urging the Department of Education to postpone its enforcement efforts until the courts sort it out.
"Enforcing this regulation will be a nightmare for the ministry," said Bob Eitel, a former senior adviser to DeVos and co-founder of the Institute for Defense of Liberty, a conservative nonprofit that is suing over the rule. "They have to take into account that they wrote an illegal rule that has no basis in law, and they have to withdraw it."
However, the agency says it will continue. Officials sent out guidance last week giving schools instructions on how to draft new nondiscrimination policies, and will hold a webinar Thursday to answer questions.
Advocates of the changes argue that the guidelines are not specific enough, and hope that they will be more clearly spelled out for individual states. Some ask how a school district should proceed if enforcement at one school is blocked? What happens if the rule changes in the middle of a sexual assault investigation?
"Students feel really confused and also disappointed that they are starting another school year without new Title IX rules that would really clarify and solidify their rights," said Emma Grasso Levine, policy and program manager for Title IX at Know Your IX, a youth advocacy group that informs students of their rights under the law.
The changes fulfill Biden's 2020 campaign promise to repeal much of the DeVos rules that have been the defining policy of her tenure. Proponents of the new rule say the previous one created an onerous investigative process for students. They say schools were able to ignore some sexual harassment allegations because the standards for discrimination were too high.
"There have been many lawsuits filed alleging either reverse discrimination under Title IX or due process violations, and I think that has discouraged schools in some cases from responding to sexual harassment complaints with the seriousness they deserve," said Shiwali Patel, senior director for safe and inclusive schools at the National Women's Law Center.
Patel said that while similar lawsuits challenging protections for transgender students are likely, many states have laws to protect them. And some schools must comply with a previous circuit court ruling, such as one requiring schools in Virginia and West Virginia to allow transgender students to use restrooms that match their gender identity.
About 400 members of the Title IX Association attended its town meeting last week to discuss the uncertainty. They urged schools to prepare contingency plans in case they have to lean toward one rule or the other.
"The area is now unresolved, said Sokolow, president of the Title IX Administrators Association. "I would say there's a lot of frustration and a little bit of panic."
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https://www.politico.com/news/2024/07/30/biden-title-ix-policies-schools-00171797
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