This past April, the Biden administration released new regulations for Title IX, the federal civil rights law prohibiting sex discrimination in federally funded education programs and activities. Before their release, the new regulations received more than 240,000 comments from the public, a number that surely ranks at or near the top in education rule-making history. They went into effect on Aug.1 (although courts have already at least temporarily blocked their implementation in more than half the states).
In June, barely two months after these regulations were released, the Supreme Court’s ruling in Loper Bright Enterprises v. Raimondo (U.S. Sup. Ct., 2024) sharply curtailed the power of federal agencies to interpret the laws they administer. This decision overruled a 40-year-old precedent, Chevron v. Natural Resources Defense Council (U.S. Sup. Ct., 1984), which required courts to uphold agencies’ interpretations of statutes they are responsible for implementing or enforcing. No longer, declared Chief Justice John Roberts, writing for the majority in Loper Bright: “[A]gencies have no special competence in resolving statutory ambiguities. Courts do.”
Loper Bright itself had nothing to do with Title IX or education; it dealt with the authority of the National Marine Fisheries Service to govern fishing in international waters off the U.S. coast. But it could have a seismic effect on the new Title IX regulations and many other rules or guidelines from the U.S. Department of Education. According to Justice Elena Kagan, writing for the dissent in Loper Bright: “In every sphere of current or future federal regulation, expect courts from now on to play a commanding role.” This sharp tilt in power toward the judicial branch is, in Kagan’s words, “a massive shock to the legal system.”
The 2024 Title IX regulations offer a test case for how the federal judiciary might wade into politically charged areas and alter the regulatory landscape. Will the courts accept the U.S. Department of Education’s interpretation of Title IX? Or will they use their new powers to radically reshape efforts to curb sex discrimination in schools?
Understanding the new Title IX
Not everything in the new Title IX regulations is actually new. Like the 2020 regulations issued during the Trump administration, the 2024 version still requires schools to have policies and procedures in place to address sexual harassment on K-12 and postsecondary campuses. This includes designating a Title IX coordinator and ensuring that school-initiated investigations and disciplinary proceedings are fair to both parties and conducted within a reasonable time frame.
But the Biden rules differ in important ways. Most notably, they expand the scope of what schools are responsible for addressing. Under the 2024 regulations, schools must address not only sexual harassment, but also harassment or discrimination based on sex stereotypes, sex characteristics, and pregnancy or related conditions. (Many of these areas were previously covered in nonregulatory guidance.)
The new regulations also require schools to protect students from harassment or discrimination based on sexual orientation or gender identity. This is the first time Title IX regulations have named such harassment as a form of sex discrimination. (Notably, though, the regulations avoid addressing the participation of transgender students in sex-segregated athletic programs. The Biden administration has stated that it intends to issue separate regulations on that topic.)
The 2024 regulations also hold schools responsible for addressing unwelcome sex-based conduct that contributes to a hostile educational environment. In contrast, the Trump-era regulations only held schools responsible for addressing behavior that was so “severe” and “pervasive” that it effectively denied a student from participating in school programs.
Biden’s Title IX regulations also restore some flexibility in how schools conduct grievance hearings, particularly at the college level. Previously, live hearings were optional for K-12 schools, but postsecondary institutions were required to use a live hearing with cross-examination. Many Title IX advocates viewed this requirement as excessive and harmful to victims. The new regulations give colleges discretion regarding whether to hold live hearings, while requiring them to uphold the rights of accused students in other ways, consistent with recent court rulings (see Kim, 2023).
Will the courts scale back Title IX?
In Loper Bright, the Supreme Court ruled that, while courts may give credence to how federal agencies interpret laws, they must “exercise their independent judgment in deciding whether an agency has acted within its statutory authority.” Courts must respect when Congress has given a federal agency authority to enforce a statute, but they “may not defer to an agency interpretation of the law simply because a statute is ambiguous.”
Following this decision, two questions about Title IX immediately come to the forefront:
- Did Congress delegate authority to the U.S. Department of Education to implement and enforce Title IX?
- Is Title IX “ambiguous” when it comes to its scope and methods of enforcement?
The answer to the first question is a qualified yes. In Davis v. Monroe County Board of Education (U.S. Sup. Ct., 1999), the Supreme Court confirmed that Congress entrusted federal agencies “to promulgate rules, regulations, and orders to enforce the objectives of [Title IX]” and to “rely on any means authorized by law to give effect to the statute’s restrictions.”
But Title IX itself states that agency actions “shall be subject to such judicial review.” So, while Congress has given agencies authority to enforce Title IX, agency actions are subject to judicial oversight. What’s not clear is whether and how much courts should defer to agencies’ interpretations in their review; that was the subject of Loper Bright.
Whether Title IX is “ambiguous” is a trickier question, but an important one: If its provisions are unambiguous, then there is very little room for judicial interpretation, even after Loper Bright. Answering this question requires directly examining the contents of Title IX.
The main, animating provision of Title IX is astonishingly short:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
That’s pretty much it, save a handful of additional definitions, exceptions, and carve-outs. The statute doesn’t specifically address sexual or sex-based harassment or violence, Title IX coordinators, equal athletic opportunities for girls and women, the rights of pregnant or parenting students, the rights of those who are LGBTQ+, or most of the other provisions contained in the nearly 1,577 pages of the 2024 Title IX regulations.
Does silence equal ambiguity? If so, then nearly every rule or guidance document produced since the passage of Title IX is up for reevaluation by the courts.
Moreover, due to its brevity, the actual contents of Title IX, while clear at the highest level, may be less so upon closer examination. It’s not hard to imagine a world in which nearly every word or phrase is eventually deemed ambiguous. What acts constitute “discrimination”? What does it mean to be “excluded”? What does “on the basis of sex” mean? Talk about ambiguity: The latter question was, in 2020, the subject of 172 pages of back-and-forth between Supreme Court justices (see Kim, 2020).
Two federal courts (as of this writing) have already evaluated the new Title IX regulations following the Loper Bright decision, with one court disagreeing with (and blocking implementation of) the agency’s new rules (Tennessee v. Becerra, S.D. Miss., 2024) and another upholding the agency’s “reasonable” interpretation of Title IX (Alabama v. Cardona, N.D. Ala., 2024).
The inescapable conclusion here is that, after Loper Bright, more federal judges will claw their way into, unravel, and reshape much of the Title IX regulatory and enforcement apparatus built up over decades.
Turbulent times ahead
Prediction: Having to newly interpret thousands of arcane provisions related to thousands of federal laws will eventually overwhelm the courts. The pendulum will swing back toward deferring to agency staff, who are more steeped in the subject matter of individual laws.
In the meantime, however, there will be a spike in legal challenges to all sorts of federal regulations, including but not limited to those pertaining to civil rights laws like Title IX. The courts will partially or totally invalidate many policies. This, in turn, will create enormous pressure on Congress to pass clearer and more specific laws to fend off judicial meddling.
As we barrel toward an extraordinarily consequential federal election, it’s safe to say that this power shift and its potential effect on laws such as Title IX won’t make most voters’ Top 10 list of considerations at the ballot box. But the stakes aren’t trifling. The voters, after all, will elect a president who will then handpick up to several hundred federal judges-slash-regulatory overseers. The voters must also elect members of Congress charged with confirming the president’s judicial nominees and writing laws that will stand up to judicial scrutiny.
These days, it seems, no matter where you look, the responsibility of the electorate is gravely magnified.
References
Kim, R. (2023). Boys, men, and Title IX. Kappan, 104 (7), 62-63.
Kim, R. (2020). The historic Bostock opinion and LGBTQ rights in school. Kappan, 102 (2), 64-65.
This article appears in the September 2024 issue of Kappan, Vol. 106, No. 1, p. 54-55.
ABOUT THE AUTHOR
Robert Kim
Robert Kim is the executive director of the Education Law Center, based in Newark, NJ. His most recent book is Education and the Law, 6th ed.
