Dive Brief:

• The U.S. Department of Education announced Tuesday it plans to launch a comprehensive review of Title IX regulations, including amendments issued under the Trump administration, carrying out a March 8 executive order from President Joe Biden. 
• The most recent round of rules issued under Title IX by the Trump administration took effect Aug.14, 2020 and required K-12 schools to overhaul processes around reporting and investigating sexual harassment and assault claims, notably holding schools liable if they failed to respond to notices by bus drivers, coaches, cafeteria staff and others.
• In a letter to students, educators and other stakeholders, Acting Assistant Secretary for Civil Rights Suzanne Goldberg wrote the department's Office for Civil Rights also anticipates proposing new rules to amend Title IX after gathering feedback from the public. While the department's review is ongoing, current Title IX regulations remain in place.

Dive Insight:

Along with the March 8 executive order initiating the Education Department's review of Title IX, Biden also issued an executive order in January focused on preventing discrimination against LGBT students under the law.

For public schools, the outcome of the review could generally fall into two buckets: transgender rights in public school spaces and organizations, and processes for reporting and investigating sexual assault and harassment claims.

On the former issue, the U.S. Department of Justice and the Education Department have both already suggested they will be walking back the Trump administration's interpretations of what constitutes "sex discrimination" under Title IX following Biden's executive order.

During the Trump administration, the Education Department signaled in a letter that the Supreme Court case Bostock v. Clayton County, which found sex discrimination includes discrimination against gay and transgender individuals, does not apply to its interpretation of Title IX. As a result, transgender students were barred from playing on sports teams aligning with their gender identity and expression. Following Biden's executive order, however, the department issued a new letter in February withdrawing that interpretation.

The Justice Department also affirmed Bostock as a standard for federal agencies and said, as such, that it applied to the Education Department's implementation of Title IX. As a result, discriminating against gay or transgender individuals would be considered running afoul of the law. Legal experts have anticipated that these decisions will be made official through Education Department rules or letters.

When the new rules on reporting and investigating sexual assault and harassment claims were issued in May, districts also reported being thin on time and resources to follow through with requirements to adapt for the new system ahead of their August implementation, given ongoing challenges related to the novel coronavirus pandemic. Citing these strains on K-12 schools, several attorneys general filed lawsuits in June 2020 challenging the rules in hopes of postponing their implementation. The lawsuits were eventually struck down. 

Democratic lawmakers have also spoken out against the Trump-era Title IX rules, asking the new secretary of education Miguel Cardona in March to prioritize replacement. 

“Today’s action is the first step in making sure that the Title IX regulations are effective and are fostering safe learning environments for our students while implementing fair processes," said Cardona in a press release. "Sexual harassment and other forms of sex discrimination, including in extracurricular activities and other educational settings, threaten access to education for students of all ages." 

The Office for Civil Rights plans to hold a public hearing to allow those interested to share their views through oral comments and written submissions. The Education Department will have more information on the hearing will be available in the coming weeks.