By Michael Bilfinger, AACRAO Assistant Director of Public Policy.
After much anticipation, the U.S. Department of Education (Department) released its final Title IX rule, which will go into effect on August 1, 2024. Title IX has protected students nationwide and ensured access to educational opportunities free from
discrimination for over 50 years. The new regulations aim to address and expand upon previous interpretations of Title IX to create a more inclusive and equitable educational environment.
Key Expansions in the New Rule
The new rule includes expansions that have been part of an ongoing national debate.. Notably:
Expanded Definition of "Gender": "Gender" now includes gender identity and expression. This change aims to protect transgender and non-binary students from discrimination based on their gender identity, ensuring that they have the same access
to educational opportunities as their cisgender peers.
Broader Definition of "Discrimination": The definition of "discrimination" has been expanded to include any instance of differential treatment rather than simply hostile workplace or quid pro quo sexual harassment.. Notably, the new rule does
not address student athletics or instances of differential treatment involving student athletics.
Increased Training Obligations: Institutions now have expanded training obligations. Schools are required to provide comprehensive training to staff and students on recognizing and preventing all forms of discrimination, including those based
on gender identity and expression. This includes educating school personnel, as well as some student workers, on the new definitions and ensuring they understand how to implement the policies effectively.
Additional Mandates: The new rule also introduces several other mandates aimed at strengthening protections for students. These include requirements for schools to provide more detailed reporting on incidents of discrimination and harassment,
to offer more robust support services for victims, and to ensure greater transparency in the handling of complaints.
Controversies and Legal Challenges
However, the new rule has not come without controversy. Significant legal challenges have arisen since its announcement:
Injunctions in Multiple States: On June 13, 2024, a federal judge in the U.S. District Court for the Western District of Louisiana issued an injunction blocking the new rule from going into effect in Louisiana, Mississippi, Montana, and Idaho.
Chief Judge Terry Doughty stated that the Department didn’t have the authority to enact such changes. On June 17, 2024, federal judge Danny Reeves of the U.S. District Court for the Eastern District of Kentucky issued another injunction,
blocking the rule from taking effect in Virginia, Kentucky, Tennessee, Indiana, Ohio, and West Virginia. Judge Reeves also found that the Department exceeded its authority. These injunctions mean that in 10 states, the new rule is currently
barred from going into effect on August 1, 2024.
Widespread Resistance: Beyond the states that issued injunctions, another 16 states have publicly stated that they will not comply with implementing the new regulations. This widespread non-compliance indicates significant disagreement with the
Department’s authority and the substantive changes introduced by the new rule. At the time this article was published, there were at least five more lawsuits still pending, which could further impact the implementation of the new regulations.
Legislative Opposition: House Speaker Johnson has publicly stated that he will block the new rule in the House and will seek measures to take a formal vote in the chamber. This legislative opposition highlights the broader political environment
surrounding the new Title IX rule and suggests that its future may be shaped not just by the courts but also by legislative actions.
Impact of the Supreme Court's Decision: The recent decision by the Supreme Court to overturn the Chevron doctrine will severely limit the authority of federal agencies to interpret statutes in ways that previously expanded their regulatory powers.
This landmark decision could significantly affect the Department of Education’s ability to enforce the new Title IX regulations and may lead to further legal challenges, questioning the Department's authority to make such expansive changes.
Looking Forward & Staying Up-to-Date
Given the numerous legal and political challenges, the future of the new Title IX regulations is very uncertain. The rule's expansion of protections for students is a significant step forward for many advocates of gender equality and inclusion, but the
strong opposition it faces could impede its implementation. Institutions and stakeholders in higher education must stay informed and prepare for ongoing developments.
Make sure to sign up for AACRAO’s weekly newsletter, Transcript, in order to stay up-to-date with the latest higher education news. By staying informed, you can ensure that your institution is prepared to respond to these changes and continue to
provide a safe and inclusive environment for all students.