Biden Administration Zeros In On Title IX With Pair Of EOs

Fox Rothschild LLP

Fox Rothschild LLP

Less than three months into the new administration, President Biden has made clear that education and equality will be focal points of his presidency.

While Title IX regulations were revised just last year, the Biden administration has quickly put forth two Executive Orders that focus on sex-based discrimination in schools.

Executive Order 13988, which was issued Jan. 25 and titled Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, made clear that “[c]hildren should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.”

Executive Order 14021, which was issued March 11 and titled Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity, went a step further. It said:

[A]ll 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 U.S. Department of Education Office of Civil Rights quickly responded and issued a letter outlining the immediate next steps the department will take to fulfill the President’s order. The Letter to Students, Educators, and other Stakeholders re Executive Order 14021 states:

“Ensuring equal access to education for all students — from pre-K through elementary and secondary schools and postsecondary institutions — is at the heart of our mission in the Department of Education’s (Department) Office for Civil Rights (OCR). Yet sex discrimination, including sexual harassment, which encompasses sexual violence, continues to threaten equal access for students of all ages. 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. For this reason, schools have a critical responsibility to combat discrimination based on sex under Title IX.”

The department went on to identify OCR’s Comprehensive Review and Guiding Principles to uphold Title IX. The letter states:

OCR will be guided by our responsibility to ensure that schools are providing students with a nondiscriminatory educational environment, including appropriate supports for students who have experienced sexual harassment, including sexual violence, and other forms of sex discrimination. This responsibility includes ensuring that schools have grievance procedures that provide for the fair, prompt, and equitable resolution of reports of sexual harassment and other sex discrimination, cognizant of the sensitive issues that are often involved. Our focus in implementing the Executive Order is also on ensuring, through the steps set out below, that students who have experienced discrimination based on sexual orientation or gender identity have their legal rights fully met.”

Going forward, K-12 schools, colleges and universities should expect:

Upcoming Public Hearings
OCR recognizes that many students, parents, teachers, faculty members, school staff, administrators and other members of the public have insights to share on the issue of sexual harassment in school environments, including sexual violence, and discrimination based on sexual orientation and gender identity. The office plans to hold a public hearing in which students, educators, and others with interest and expertise in Title IX will be able to participate by offering oral comments and written submissions. OCR expects to announce the dates and times for this hearing in the coming weeks. More information regarding these public hearings, including dates, times, and how to register to participate and speak, will be published on the News Room section of OCR’s website and in a forthcoming Federal Register notice.

Forthcoming Q&A
OCR will prepare a document to assist schools, students, and others understand what is happening.

Notice of Proposed Rulemaking
After hearing from the public and completing its review of the department’s current Title IX regulations and other agency actions, OCR anticipates publishing in the Federal Register a notice of proposed rulemaking to amend the department’s Title IX regulations. This notice will provide individuals, organizations, schools, and other members of the public with an additional opportunity to share insights and views through a formal notice-and-comment period.

Schools, parents, teachers and administrators should seize these opportunities for input on Title IX. This is a prime time for everyone in a school community to provide their first-hand knowledge and insight. We will continue to provide alerts on these critically important opportunities to provide feedback and shape what changes will be promulgated by the department in the future.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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