Special to the Vanguard
Washington, DC – By a 5-4 vote, the Supreme Court of the United States Friday denied the Biden administration’s request to allow most of its Title IX rule to take effect in places where courts have issued preliminary injunctions temporarily blocking the rule.
The court’s order makes explicit what was previously implied by the court’s failure to act ahead of the rule’s August 1 effective date.
The order means that the rule remains blocked in 26 states as well as some additional schools. The rule already went into effect on August 1 as planned in the rest of the country.
“These lawsuits are using attacks on trans kids as a way to roll back other rights for women and girls,” said Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project. “Attacking trans people does nothing to address the real problems women and girls face. We’re disappointed the Supreme Court allowed these cruel and hypocritical tactics to succeed, even temporarily. We will continue to fight for all students to learn in safe and equal schools.”
“The new guidance from the Biden administration is crucial to clarifying the protections under Title IX for so many students, including transgender and and other LGBTQ students, pregnant and parenting students, and other students facing sex-based harassment, but even without it, students are not unprotected,” said Jennesa Calvo-Friedman, senior staff attorney for the ACLU’s Women’s Rights Project. “Despite what the Supreme Court did today, students can still bring private lawsuits against schools to vindicate their Title IX rights, including based on their gender identity or their pregnancy or parenting status, even in places where the rule is blocked.”
“Schools should be aware that sex-based discrimination, including harassment, is unlawful, and students can still hold schools accountable,” added Calvo-Friedman. “What’s more, schools do not have to wait for a mandate to adopt practices that welcome all kids. Trans-inclusive policies are still lawful, and schools can – and should – move forward with them.”
In April, the U.S. Department of Education issued a final rule today governing schools’ obligations to guarantee that all students, including survivors of sexual harassment, LGBTQ students, and pregnant and parenting students, have full and equal access to educational opportunities regardless of sex.
“At a critical time, when trans youth are being used by politicians as a punching bag, the final rule issues an important reminder that schools cannot discriminate based on gender identity, transgender status, or sexual orientation,” said ACLU’s deputy legal director, Louise Melling. “All students have the right to an equal opportunity to learn in school without being discriminated against on the basis of sex or sex stereotypes..”
Melling continued, “The rule also includes important provisions that require schools to address and investigate complaints of sexual harassment, restoring standards that were in place for decades and that mirror those used for other forms of harassment.”
However, she said, “it falls short by failing to mandate certain procedural protections that complainants and respondents should have in university disciplinary proceedings.
“The ACLU will remain committed to ensuring schools are doing everything in their power to safeguard students from sexual harassment and violence and ensuring fair process in school disciplinary proceedings.”
The ACLU supports the provisions in the final regulation that:
- Make clear that Title IX covers harassment and discrimination based on sexual orientation, gender identity, and sex stereotypes;
- Restore the longstanding “severe or pervasive” standard for sex-based harassment
- Require schools to investigate instances of student-on-student harassment or assaults that occur off campus where they affect students’ access to education;
- Hold institutions accountable when they fail to take prompt and effective action to end sex discrimination;
- Clarify that parties should be able to access relevant evidence while limiting access to irrelevant or privileged evidence;
- Clarify that in the limited circumstances where Title IX’s regulations permit differential treatment or separation on the basis of sex, that differential treatment cannot prevent a person who is transgender from participating in an educational program or activity consistent with the person’s gender identity;
- Clarify the definition of discrimination based on status as a parent to include a range of individuals with caregiving responsibilities for children; and
- Make clear that the existing prohibition on pregnancy discrimination includes discrimination based on lactation and requires recipients to provide a clean lactation space and break time to express milk for both students and employees.
The ACLU opposes the provisions in the final regulation that:
- Do not require universities to provide a live hearing and an opportunity for cross-examination where serious sanctions, such as suspension or expulsion, may apply;
- Permit universities to use the single investigator model, where a single person investigates a complaint and makes the decision about the outcome; and
- Do not require institutions to delay Title IX proceedings upon the request of a respondent who faces an imminent or ongoing criminal investigation or prosecution.
