Using Title IX and Other Civil Rights Laws to Enforce Administrative Policies
| | Title IX
An approach used by the current presidential administration to further policy goals expressed in administrative guidance has sparked debate over the purpose and use of civil rights laws. Proponents say the administration is using the laws to provide the protections they intended, while opponents of the approach claim that the administration is weaponizing the laws to defeat their intended purpose.
Regardless of whether you believe these uses of civil rights laws support or subvert justice, it can be important to understand how they are being used in the context of Title IX.
“All-Gender” Restrooms in Denver Public Schools Held to Violate the Rights of Women and Girls
On the same day President Trump took office, he issued Executive Order 14168, leaving no doubt about the intent to change the enforcement of civil rights laws, such as Title IX as they applied to gender identity issues. The title of the Order, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” clearly reveals an intent to reverse the interpretations and ideological slant of the previous administration. The Order specifies that the Executive Branch will enforce “sex-protective laws” to promote the policy of recognizing an immutable biological classification as male or female and give no credence to the concept of gender identity.
Many schools scrambled to adjust their rules to comply with these and other policy guidelines and presidential orders. However, many institutions also chose to stand by the rules implemented under the earlier policies. Now we are finally starting to see the fallout.
At the end of August, the Department of Education’s Office for Civil Rights announced that Denver Public Schools were found to be discriminating against female students in violation of Title IX when they converted restrooms separated by sex into “all-gender” facilities. In addition, the OCR also found the school district in violation for promoting a policy of allowing students to use “intimate facilities” in accordance with their gender identity rather than their “biological sex.”
The Office for Civil Rights stated that to comply with Title IX requirements, the school district needed to convert multi-stall restrooms back to single sex restrooms, rescind policies that allow the use of facilities based on gender identity, use biology-based definitions for the terms “male” and “female” in Title IX policies, and issue guidance to all schools reiterating the public policy goals.
Denver Public Schools responded with an objection to the approach used by the Office for Civil Rights, which they alleged did not include sufficient investigation. The school district asserted that the Department of Education misinterpreted Title IX provisions regarding sex-separate facilities, saying that Title IX allows but does not require sex-separate facilities. They explained that they created the gender-neutral restrooms to help LGBTQ+ students feel safe and stood by the decision, particularly in light of the need to protect their “most vulnerable” students.
At stake is federal funding for the district. Title IX applies to educational institutions that receive federal funding; therefore, an institution or group found to be out of compliance risks losing a substantial source of support. The Department of Education asserts that the enforcement is necessary to protect the rights of women, while the school board says its policies are necessary to protect LGBTQ+ students.
Gender-Identifying Policies of Virginia School Districts Found to Violate Title IX
In two separate investigations, the Department of Education’s Office for Civil Rights (OCR) announced that five Virginia school districts were operating with gender identification policies that violated Title IX. The first decision involved five districts in the northern region of the state, and the most recent decision involved additional allegations concerning one of the five districts, Loudon County Public Schools.
The decision involving five school districts concerned policies for the use of “intimate” facilities, including restrooms and locker rooms. According to OCR, the policies in the districts allowed access to facilities according to “students’ subjective ‘gender identity’” and that this violated the sex-based protections of Title IX. Acting Assistant Secretary for Civil Rights Craig Trainor referred to the policies as “trampling on the rights of students in the service of an extreme political ideology.” The inclusion of this statement in the Department’s press release seems to suggest that the decision was based at least in part on policy priorities rather than strict legal reasoning.
In the second investigation, OCR reiterated that allowing students to occupy intimate facilities in accordance with gender identity violated Title IX by compromising the safety, dignity, and privacy interests of students. Additionally, OCR found Loudon County Public Schools violated the Title IX rights of two male students because the school district failed to meaningfully investigate complaints of sexual harassment filed by these students.
Use of Other Civil Rights Laws to Advance Policy Goals
Title IX is one of the most visible tools used so far to further policy goals, but it is not the only civil rights law to be used in this fashion. For instance, in April, the OCR opened an investigation into allegations that Chicago Public Schools violated Title VI of the Civil Rights Act by initiating a “Black Students Success Plan.” When announcing the launch of the investigation, Trainor asserted on behalf of OCR that the school district was allocating extra resources to “favored students on the basis of race” and that this used federal funds in a “pernicious and unlawful manner.”
Recently, OCR wrote to notify the school district to inform them that the district could provide no justification that would “overcome the patent illegality of its racially exclusionary plan.” Because the plan provided benefits only to students of one particular race, it was deemed to be in violation of Title VI.
Future Interpretations of Title IX and Other Civil Rights Laws
In addition to the voices applauding and deriding the use of civil rights laws to further specific political agendas, there is a third chorus advocating for leaving these policy decisions to individual state governments. So, if you need to file or respond to a Title IX complaint in this tempestuous environment, will the use of federal civil rights laws assist in achieving your goals or present challenging obstacles to overcome?
Regardless of shifts in public policy, the key to success in a Title IX case often hinges on the ability to make critical legal distinctions. A skilled attorney knowledgeable in Title IX enforcement issues can argue effectively on behalf of a complainant or respondent in any environment. So choosing the right legal team to assist in pursuing or defending a case becomes more important than ever.
If you’d like to discuss a Title IX issue with an experienced student advocate at Nesenoff & Miltenberg, we invite you to schedule a confidential consultation. We work with students, faculty, and staff throughout the U.S.