Yesterday, 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.
The March 8, 2021, executive order directs the Secretary Cardona within 100 days (by June 16, 2021) to review all existing regulations, orders, guidance documents, policies, and any other similar agency actions that are inconsistent with the new administration’s broad interpretation of Title IX concerning sex, sexual orientation, and gender identity, including sexual harassment. The executive order explicitly refers to the 2020 Title IX regulations as among the rules that the Department of Education must review. It directs the Secretary to issue “new guidance” as needed to implement the 2020 Title IX rules. The order also directs the Secretary to “consider suspending, revising, or rescinding—or publishing for notice and comment proposed rules suspending, revising, or rescinding—those agency actions,” including the 2020 Title IX regulations, if they are found to be inconsistent with the new administration’s stated policy and if “appropriate and consistent with applicable law.”
The order directs the Secretary of Education to “consider taking additional enforcement actions, as appropriate and consistent with applicable law,” to enforce the new administration’s policy on sex discrimination and “legal prohibitions on sex discrimination in the form of sexual harassment, which encompasses sexual violence, to the fullest extent permissible under law; to account for intersecting forms of prohibited discrimination that can affect the availability of resources and support for students who have experienced sex discrimination, including discrimination on the basis of race, disability, and national origin; to account for the significant rates at which students who identify as lesbian, gay, bisexual, transgender, and queer (LGBTQ+) are subject to sexual harassment, which encompasses sexual violence; to ensure that educational institutions are providing appropriate support for students who have experienced sex discrimination; and to ensure that their school procedures are fair and equitable for all.” Although it is unclear what this language means, might OCR begin taking a different stance on Title IX even before we get any guidance from the Department of what their position might be. That would not be unprecedented, as the Trump administration began to push down directives to OCR in 2017 before issuing any formal guidance about what position it was taking on issues.
Although it has been done before, it is an understatement to say that such an approach is difficult for schools. Without knowing what guidelines OCR will use in an investigation or enforcement, it is challenging to defend the institution’s actions. It is more important than ever, then, to work with counsel when you receive an OCR complaint, particularly one involving sexual harassment under Title IX. Counsel can liaise with OCR staff to glean whatever information is available about what positions the agency will take on a matter before putting together a response.