EO, EO, It’s Off to Work We Go

By: Brett A. Sokolow, J.D., President, ATIXA

How the Latest Biden Executive Order Will Impact the Title IX Field

On March 8, 2021, the Biden Administration issued an Executive Order (EO) on guaranteeing an educational environment free from discrimination on the basis of sex, including sexual orientation or gender identity.

This EO formally starts a process of review of existing regulation to ensure consistency with Biden Administration priorities. The EO sets a 100 day review period, so hopefully, by mid-June, there will be some reporting out from the Department of Education (ED) that gives the field some idea of the strategy(ies) that ED will use to meet these imperatives. It looks like there are two separate goals: 1) to enhance protections of LGBTQ+ individuals in educational programs, and 2) to evaluate the existing Title IX regulations in light of Biden administration priorities, with recommendations for future action.

As to the first priority, guidance is expected from ED in short order, perhaps to be followed by regulation. Most observers believe that the Biden Administrations position (consistent with one of the EOs it issued on day one of the administration) will be that Title IX protects individuals on the basis of sex, including sexual orientation and gender identity consistent with the Supreme Court’s interpretation in its Bostock decision and the Obama Administration’s 2015 Dear Colleague Letter on the same subject. One of the vehicles for President Biden to extend these protections within federal policy is within Title IX. New Title IX guidance would help to assure rights of access for LGBTQ+ students and employees at colleges and schools, including protections from being intentionally misgendered, rights of access to facilities, and perhaps even athletics participation.

Reading between the lines with respect to the second priority, President Biden is sending instructions for ED to huddle with its lawyers and those in the DOJ to try to figure out the most expedient way to wiggle out of or around the 2020 Regulations. This is expected. The questions are how will ED act, how soon will it act, how effective will its actions be, and what will they replace the regulations with?

This is really a test of the DeVos lockbox. ED under Betsy DeVos made it a priority to lock up Title IX within regulations that could not easily or quickly be changed by successors. By using the regulatory process, rather than issuing guidance, DeVos attempted to ensure that only another multi-year regulatory process could undo what she wrought. How solid is the lockbox she created? We’re about to find out. Will it consign the field to follow the 2020 Regulations until changes that might not arrive until 2022-2024? Or, will creative government lawyers figure out a way to extinguish the regulations promptly, replace them with interim guidance, and then begin either a legislative and/or regulatory replacement process? Could the federal courts assist in unlocking the box through litigation? Bottom line, the Regulations will change, the only question is when between now and 2024 will those changes take effect?

Also, bear in mind that to the extent that the 2020 Regulations do comport with Section 1 of the March 8th EO, this may be suggestive of only partial repeal, not wholesale, and as ATIXA has reminded our members previously, repeal doesn’t really seem like a viable or immediate possibility, though repeal and replace will eventually happen. We can think of a couple of near-term repeal/rescind strategies, but everyone we’ve talked to in the legal community does not give those options much chance, realistically. Stay tuned because we will keep ATIXA members abreast of any news, but for now, the 2020 Regulations have the force and effect of law, so colleges and schools must do their best to comply. Even if ED signals non-enforcement of the DeVos rules in the near-term, the courts still have the authority, perhaps even the obligation, to enforce them.

As to what the ED lawyers will recommend, we see a number of possible paths, which may not be mutually exclusive. Here are some possibilities, in order from most likely to least likely:

  • Issuing guidance on topics not covered by the Regulations, such as LGBTQ+ protections. We see this as 100% likely, even though the guidance will be litigated. The Biden Administration must be fairly confident that the Supreme Court will follow Bostock in its interpretation of Title IX. Obviously, there is also a legislative strategy with The Equality Act, but most observers don’t give that bill a strong chance of passage during this legislative session.  

  • OCR announcing some level of non-enforcement of the 2020 Regulations. As discussed above, this is possible, perhaps even likely, but won’t apply to court enforcement. Thus, colleges and schools will have to make risk/reward decisions with the knowledge that any actions which deviate from the Regulations may not provoke OCR enforcement, but could result in liability from lawsuits. Also, it’s a risky game for OCR to pick and choose which rules it will enforce, and which it won’t. That could be very confusing for the field, both in theory and practice.

  • ED under newly-confirmed Secretary Miguel Cardona will re-write the regulations, but even on a fast track, that’s probably an 18-24 month process, unless Congress also acts, which means real changes may not arrive until 2023-2024. The risk of piecemeal approaches where Congress and ED both try to address Title IX is also real, and may result in inconsistencies in approach and timing.

  • ED will issue guidance that clarifies the Regulations. This is pretty likely in the near term, either through OPEN Center guidance, sub-regulatory guidance, and/or rescinding/ replacing the preamble to the Regulations (2000pp of interpretation that does not have the force and effect of law). While the core of the Regulations cannot be changed by agency fiat, many of the interpretations can.

  • ED seeking a stay of the Regulations in court and/or not defending suits against the Regulations is also possible. There are three lawsuits against the Regulations pending in federal courts, though most observers do not consider them particularly viable. Perhaps others will be filed, before more sympathetic judges? Congress is counting on this strategy, apparently. On March 2, 2021, Congresswoman Jackie Speier spearheaded a letter from 115 Members of Congress mapping out the idea that ED/DOJ would seek a stay of the lawsuits by temporarily suspending enforcement and taking the Regulations under review, while issuing interim guidance that would likely restore some of the approaches of the 2011 Dear Colleague Letter (and thus trigger lawsuits over the guidance, again!). This is an outlier strategy, but Speier seems to think it is viable. Perhaps it is, but we have to account for the fact that even if ED/DOJ don’t defend their own Regulations against federal litigation, other organizations (FIRE? SAVE? Etc.) will likely intervene as defendants to do so. Would a judge grant the stay? Would an appeals court uphold it? Would the Supreme Court grant cert? Will a 6-3 Court be likely to overturn regulations that strongly protect due process rights and were promulgated under the Administrative Procedure Act (APA) through notice and comment rulemaking? Would that process be any faster than just replacing the regulations in the next 18-24 months through another APA process?

That’s the nutshell of what we’re facing. We’ve seen such uncertainty before, from 2017-2020, as the previous administration completed the regulatory process. Then, the education field was left in limbo, unclear of what to do and uncertain of when new rules would take effect. At least now, the rules are in effect and clear, if unpopular. Perhaps there are other strategies clever lawyers will soon deploy that some of us aren’t even thinking of yet. We’ve seen this before, with Obama’s health regulations that protected LGBTQ+ people. The Trump administration refused to enforce them, and a lawsuit was filed to require enforcement. The Trump administration did not survive to fully litigate that suit before it left office. The Biden administration will now enforce those health regulations, mooting the suit. All of which is to say that the questions of Title IX’s future may not be resolved in the next four years, either. What we do know is that we’re going to fill a ton of column space keeping you all informed as the next chapter of the Title IX saga unfolds.

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