On Halloween eve, I left my home in the Philadelphia suburbs and made my way downtown to a Title IX conference, optimistic to hear words of wisdom I could pass to the K-12 schools I advise. Trucks blaring “Get Out and Vote” messages drove past me, while campaign volunteers carrying stacks of flyers stood on the corner of Market Street, eager to appeal to voters with less than a week before the 2024 presidential election.
I filed my way into a bustling hotel, along with hundreds of others, to spend the day discussing trends and best practices to navigate the ever-changing world of Title IX. Posterboards outside overflowing meeting rooms listed available presentations to attend throughout the conference, which was hosted by the Association of Title IX Coordinators, or “ATIXA” as they’re referred to in the Title IX community. Some options included, “Queering Up the Title IX Process: Responding to Reports of Discrimination Based on Sexual Orientation and Gender Identity Under the 2024 Regulations,” and “Not So Random Acts of Violence: Cultural Contributors to Gender-Based Violence and How to Address Them.”
For two days, I heard from Title IX coordinators, legal counsel, and consultants throughout the country about how they believe Title IX should be tackled. The only consistent thing I heard was the inconsistency and the unknown.
When Congress passed Title IX as part of the Education Amendments of 1972, it was focused on securing rights for women. Its passage filled the gap of what the laws on its heels did note—Title VI of the Civil Rights Act of 1964 prohibited race-based discrimination, and while Title VII prohibits sex-based discrimination, it only does so for employers, not schools. So, Congress passed Title IX to ensure that college-bound women weren’t denied admission or aid based on their sex and that female college professors achieved tenure on the same track as their male counterparts. There was little to no talk of combatting sex-based violence or expanding LGBTQ rights, which are now the ever-talked about topics in the Title IX world. But, as presidential administrations changed and proclaimed new guidance, Title IX’s scope seemingly broadened to include protections based on sexual orientation and gender identity and included a process to address sex-based harassment.
When former President Donald Trump—and now President-elect Donald Trump—took office in 2016, his administration repealed Obama-issued guidance on how to address sexual misconduct and initiated the federal rulemaking process to formally issue Title IX regulations. Why? There was criticism that under the Obama guidance (specifically a 2011 Dear Colleague Letter), college students accused of sexual misconduct were being prematurely and wrongly expelled from colleges without having an adequate opportunity to defend themselves. The result? In August 2020, colleges and K-12 schools were prohibited from disciplining a student for alleged sexual harassment until the conclusion of a three-step procedure-heavy grievance process consisting of an investigation, decision-making stage and appeal. The process resembles litigation, is often adversarial, and takes months to complete.
The 2020 grievance procedures sent the K-12 world into a tailspin, flipping long-standing discipline procedures on their head. K-12 schools want to enact discipline quickly so a student understands the consequences of their behavior and is hopefully deterred from engaging in similar behavior in the future. Waiting months to impose discipline until the conclusion of an intensive process misses the mark for discipline in the K-12 world.
And, with ever-changing guidance, court decisions, and OCR investigations, determining what kind of K-12 conduct triggers Title IX’s protections is often a hotly debated subject in the Title IX world. There’s a school of thinking that Title IX is only reserved for egregious cases of sexual misconduct or violence, something that is uncommon in the K-12 world. But, the other school, the one I subscribe to and counsel clients on, is that Title IX casts a wide net, and inappropriate sex-based behavior, even though it may not be sexually motivated, can implicate Title IX. And although there may not be a violation, arguing that Title IX wasn’t implicated carries a heavy set of legal risks, especially if a school’s decision is challenged down the road.
I often recall a conversation I had with a colleague about the 2020 regulations regarding a client looking to discipline a student for behavior that implicated sex. “So, if this student punched another student in the face because he was a bully, the school could suspend him immediately. But, because this conduct implicates Title IX, the school needs to hold off?” he asked. “Yes,” I explained, and I won’t detail our conversation about the ins and outs of the 2020 emergency removal provision, which similarly is not K-12 friendly and procedure heavy.
The 2020 regulations provided tremendous due process rights and protections to students, protections which were unheard of in the K-12 space. On its face, affording students protections sounds positive, but in reality, the 2020 grievance procedure often created an antagonistic process between K-12 families, some of whom will need to spend upwards of a decade interacting with one another as their students progress in school. And, as I constantly advise Title IX coordinators, “there are no secrets in a Title IX investigation” because the 2020 process requires evidence to be disclosed to all parties. Students and their families often decline to file a complaint because they want the confidentiality protections a non-Title IX, K-12 investigation can afford—one where the accused student and their family isn’t notified of what is said in an interview or what witnesses wrote in a statement. In fact, during one ATIXA session, a presenter’s statement that they “take all steps possible to avoid going down the 2020 grievance procedure” garnered a large round of applause from attendees, in addition to looks of concern if doing so could carry legal risks.
The Biden administration’s 2024 regulations walked back some of the aches of the 2020 process, now allowing K-12 schools to use a single investigator model, meaning the investigator can now decide if Title IX was violated. This speeds up the process exponentially. However, as detailed in countless articles, the 2024 regulations may not be here to stay. While the Biden administration’s walking back of the procedural hurdles was welcome for some, its decision to explicitly expand Title IX’s protections to include sexual orientation and gender identity have not been. States across the country have filed successful requests for injunctions, halting implementation of the 2024 regulations and the expanded protections of Title IX. The reasoning—“the term ‘sex’ means the traditional concept of biological sex in which there are only two sexes, male and female,” as Kansas U.S. District Judge John Broomes wrote in his July 2, 2024, opinion and order. Broomes’ order granted a preliminary injunction to several states and organizations, including Moms for Liberty, a nationwide organization that advocates against governmental regulation in K-12 schools.
In Pennsylvania, while there is no statewide injunction, we have what’s referred to as the “List,” a term coined from Broomes’ opinion. In the Kansas litigation, Moms for Liberty can prevent the 2024 regulations from going into effect nationwide by filing a list of schools (not school districts) where the children of their members attend on the Kansas docket. The result? Many school districts have some schools on the List, but others off. Because of that, those districts need to alter their Title IX approach based on where a reported offense occurs, adding more chaos and confusion to an already muddied legal landscape.
So, what’s next? On that Halloween eve, as I left Market Street and headed for the suburbs, I saw political signs change from blue to red the closer I got to home and knew the federal government’s position on the scope of Title IX’s protections might be shifting yet again. It’s unclear what the federal government’s next Title IX move will be. Will the executive branch explicitly remove Title IX’s added protections for sexual orientation and gender identity? Or, will the courts resolve that question first? What process will schools be left with to address sex-based complaints? Regardless of which political party controls the executive and legislative branches, K-12 schools will still need to work toward ensuring compliance with Title IX. The swinging of the political pendulum, despite its direction, will continue creating questions for K-12 schools and their legal teams to answer.
Christina Gallagher is an education attorney at Wisler Pearlstine in Blue Bell. Gallagher focuses much of her practice on Title IX, advising and training Title IX coordinators for K-12 schools about Title IX and its daily impact on the operation of schools. She also investigates Title IX complaints for public school districts and other educational entities. Learn more at www.wislerpearlstine.com.
