With just a few days left before districts have to implement the contentious final Title IX rule, Title IX coordinators and lawyers are scrambling in states where injunctions have paused the regulation. And amid what they describe as chaos, the U.S. Department of Education has not released official guidance or announced resources for nearly half of states where the Bident administration's rule is temporarily blocked.
"The first day of school is coming. Complaints are coming," said Jackie Gharapour Wernz, an education civil rights consultant for Education Civil Rights Solutions, which provides Title IX compliance training. Wernz previously served as a civil rights attorney for the Education Department’s Office for Civil Rights in both the Obama and Trump administrations.
"So this massive confusion that's facing school districts — it's unfair."
On Wednesday, the department released resources for schools and stakeholders on implementing the new rule that goes into effect Aug. 1. However, the pointers don't apply to the states and schools with injunctions. The department also warned that the list of schools where OCR cannot enforce the rule may grow in the coming days.
For those states and schools — many of which have also received state guidance or are subject to state laws contrary to the rule — questions linger over whether the department will continue enforcing the old 2020 regulations, how to prepare to pivot if the injunctions are lifted or imposed, and how to toe the line between opposing state and federal priorities.
Education Department 'has not sent us any communications'
Much of the turmoil arises from lawsuits filed by attorneys general in conservative-leaning states over the rule's historic LGBTQI+ protections. The Education Department has escalated these challenges to the appellate courts, challenging some of the multiple defeats that have paused the rule's enforcement in at least 21 states and some 430 schools.
Then on Monday, the Biden administration went a step further and asked the U.S. Supreme Court to allow the Education Department to at least enforce the uncontested parts of the rule.
While the Education Department and states remain embroiled in 11th-hour litigation, Title IX coordinators, lawyers and consultants in injunction states are still anxiously awaiting guidance.
"The U.S. Department of Education has not sent us any communications as far as, 'Recognizing the situation you're in due to your state's lawsuit, here's how you proceed,'" said Charlotte Reynolds, Title IX coordinator for Teton County School District #1 in Wyoming, where an injunction is in place. Reynolds says her district is at a standstill for the Aug. 1 implementation as she waits for injunctions to play out.
"I think recognition from the Department of Ed that we're sort of in a holding pattern here … would be very helpful."
In Utah, as school districts braced for the implementation date, they received word from the state board of education that a Kansas federal court injunction would keep the department’s 2020 regulations in place.
The state board and superintendent said in a July 9 letter to district leaders that even if the injunction were to be lifted, district leaders should comply with recent state laws prohibiting transgender students' access to bathrooms aligning with their gender identities and regulating pronoun changes. Those policies likely conflict with the new 2024 federal Title IX protections.
In June, Utah Gov. Spencer Cox also signed resolutions instructing state employees to put state law over the federal regulation.
“So this massive confusion that's facing school districts — it's unfair.”
Jackie Gharapour Wernz
Education Civil Rights Consultant
"It feels like they're expecting that that injunction will be lifted, that the 2024 regulations will move forward, but then we have to navigate how to not be charged with crime for violating state law if we follow Title IX," said a Utah district Title IX coordinator, who spoke with K-12 Dive on condition of anonymity, fearing backlash from local policymakers.
"I knew that the gender identity and sexual orientation inclusion would be problematic," she said about the final Title IX rule. “I didn't realize just how problematic until all the states started kind of going crazy."
Title IX lawyers and consultants also say they're flying in the dark. As such, they're offering varying guidance to districts in states with injunctions.
Some are operating on a hunch that the Education Department will continue to enforce its 2020 regulations and have advised districts to keep their policies in place, but with a 2024 policy waiting in the wings should things change. Others have said to keep Title IX policies general enough that they can be implemented regardless of how the wind blows. Some have even suggested a blending of the two rules — to the best of districts' abilities.
To further complicate matters, the Title IX rule is now also on hold in over 400 specific schools — meaning even some districts in states without injunctions could have to tailor their policies by school rather than have one districtwide approach. The rule was enjoined in those schools as a result of a lawsuit filed in Kansas by conservative state attorneys general and advocacy groups, whose members or members' children attend them.
Oklahoma, for example, does not have an injunction in place, but at least two of its schools have the rule enjoined.
"The debate going on is: Does this order prevent schools from even implementing the 2024 regulations, or does it simply prevent the Department of Education from enforcing the 2024 regulations in those schools?" said Brandon Carey, staff attorney for the Oklahoma State School Boards Association, and an OCR attorney under the Bush and Obama administrations from 2007 to 2013. As of July 23, those schools, he said, had not yet decided how to proceed.
The Education Department did not respond to K-12 Dive's requests for comment on whether it will be enforcing the 2020 rule in places with injunctions, or whether it will interpret Title IX as protecting LGBTQI+ students or release any guidance for those states.
K-12 Dive also reached out to nine of the department's 12 OCR regional enforcement offices with jurisdiction over the 21 states where the rule is enjoined. Those offices did not comment either.
OCR's Denver office, which oversees OCR enforcement in Wyoming and Utah, referred K-12 Dive to the national office's resource released Wednesday when asked how it will enforce the rule where those resources don't apply. That resource applies only to non-injunction states.
Impact on students and schools 'frustrating'
In releasing its resources for non-injunction states on Wednesday, the department said its rule "aims to fulfill Title IX’s promise that no person experiences sex discrimination in federally funded education."
"Today’s resources bring us even closer to realizing Title IX’s nondiscrimination promise in our nation’s schools," an email announcement said.
However, Title IX coordinators and lawyers say that school districts and the students they're tasked with protecting are paying the price for the political turmoil between state and federal governments, as well as the consecutive rule changes over three White House administrations.
Ultimately, all of this is counterproductive to helping the very students the rules are meant to protect, they contend.
Much of the Utah Title IX coordinator's time, for example, has been spent finding loopholes in conflicting policies in an attempt to harmonize them.
"It's exhausting. I think that's probably the biggest hit, is that all of this stuff takes so much time, and it just makes me further and further behind," the coordinator said. "Which is frustrating for me, it's frustrating for the parties that I'm trying to help, and it just makes it harder to protect people who actually have suffered some discrimination."
In Wyoming, Reynolds said she's struggling to train staff, which she typically tries to fit in over the summer before the new school year kicks off.
“We want to make sure we do things right...But we don't know what ‘right’ is really going to mean.”
Charlotte Reynolds
TItle IX Coordinator, Teton County School District #1
"We're not really in a position to be able to provide clear training and guidance for our staff, because we're sort of caught between the 2020 regulations and the 2024 regulations," she said. "Which do we train on? How do we prepare our staff?"
And despite what they say are their best attempts at compliance, Reynolds and others fear lawsuits and OCR complaints loom on the horizon, which will only drain more time and resources.
"We want to make sure we do things right," said Reynolds. "But we don't know what 'right' is really going to mean."
The federal Education Department could choose to delay the rule's implementation date instead of moving forward with a fragmented rollout. That is unlikely, however, according to Title IX lawyers who have been following the issue since at least the Obama administration.
And the frustration and anxiety doesn't stop with the rule's Aug. 1 implementation date. With elections in November and a new presidential administration right around the corner, Title IX lawyers and coordinators are bracing for yet another change in policy.
Oklahoma school boards attorney Carey said he would prefer that Congress release some form of overarching guidance rather than putting districts "in a position of being swatted back and forth between the concerns of presidential administrations."
"We're feeling a little bit like a ping-pong, getting sort of tossed back and forth," echoed Reynolds, "while our jobs really should be focusing on taking care of our kids and making sure their well-being is at the forefront."
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