With the new school year approaching, Title IX changes face Supreme Court scrutiny

As millions of Americans prepare for the new school year, a significant legal battle is brewing regarding the rules for sex-based discrimination in schools. The United States Supreme Court is poised to weigh in on legal challenges to the Biden administration’s updated Title IX regulations, which have sparked widespread debate and controversy.

Enacted in 1972, Title IX prohibits sex-based discrimination in any educational program or program activity that receives federal financial assistance. Over the years, the scope of Title IX has expanded to include protections against gender discrimination and safeguard LGBTQ+ students.

In April 2024, the Biden administration introduced a sweeping array of changes to Title IX regulations, set to take effect on Aug. 1, 2024. These changes promise to significantly alter the procedures governing Title IX at educational institutions across the country. However, the path to implementation has been fraught with legal challenges.

Twenty-six states have launched legal battles to prevent these regulations from taking effect, arguing that they violate the Administrative Procedures Act (APA) and raising constitutional questions about modified procedural rules. Multiple District courts, including those in the Fifth and Sixth Circuits, have issued preliminary injunctions to block the changes. As tensions rise, a high-stakes showdown looms, with the Biden administration recently seeking emergency relief from the Supreme Court.

One contentious procedural change pertains to how Title IX complaints are initially filed. Previously, a formal written complaint was required to initiate an investigation. Under the new rules, however, a complaint can be either an “oral or written communication” that can be interpreted as a request for an investigation into alleged sex discrimination under Title IX. The Department of Education has stated that this change aims to “encourage reporting and facilitate complaints of sex discrimination,” which they see as crucial to fulfilling Title IX’s non-discrimination mandate.

Critics, however, question the reliability of oral complaints, likening them to hearsay under common law. They also argue that oral complaints may hinder respondents from receiving adequate notice of allegations. In a lawsuit filed against the Department of Education in the Eleventh Circuit, Alabama, Florida, Georgia, and South Carolina contend that “verbal complaints are often vague and imprecise, making it difficult, if not impossible, to provide accurate and adequate written notice.”

Another controversial procedural change permits educational institutions to adopt a “single investigator” model for resolving Title IX complaints. Previously, a multiple-investigator process was mandatory, requiring separate individuals to serve as investigator and decision-maker. The new regulation allows institutions the option to consolidate these roles, purportedly enhancing administrative flexibility and efficiency. However, opponents argue that this change undermines due process and ignores a history of federal court criticism. The American Civil Liberties Union and several states have voiced strong opposition.

The new regulations also eliminate the requirement for post-secondary institutions to conduct live hearings with cross-examination during sexual misconduct investigations. Proponents of the previous mandate argued that live hearings were essential for ensuring fairness. The updated rules allow institutions to choose between live hearings and alternative methods, such as written testimony and interviews without cross-examination.

In Alabama v. Cardona, Alabama, Florida, Georgia and South Carolina allege that removing a respondent’s right to a hearing violates the due process clause of the Constitution by denying the respondent the opportunity to confront their accuser. The Biden administration has already taken the position that the Supreme Court has not specifically ruled on what procedures satisfy due process in the context of Title IX grievance procedures at post-secondary institutions.

With multiple district courts issuing injunctions against the new regulations, the Biden administration filed an emergency writ with the Supreme Court on July 22, 2024, seeking a partial stay of the preliminary injunctions. Solicitor General Elizabeth Prelogar, representing the Department of Education, argues that the injunctions are “grossly overbroad” and prevent the implementation of critical provisions of the updated Title IX rules.

The injunction issued by the Eastern District of Tennessee, in particular, blocks all new Title IX regulations in twenty states. The Department of Education contends that the Eastern District focused solely on three major substantive changes, notably expanding the definition of “sex” to include gender and gender identity. This leaves room for the Supreme Court to, should it choose, step in and narrow the scope of the injunction, potentially allowing procedural changes to take effect nationwide, at least temporarily.

Irrespective of potential intervention by the Supreme Court, the new Title IX regulations will take effect in many states on Aug. 1. In California, for instance, schools and universities are poised to unveil revised Title IX policies, impacting any students, educators, and administrators involved in Title IX proceedings. As the legal battles unfold, the new academic year is set to begin under the cloud of uncertainty surrounding Title IX’s future.