The Future of Title IX After Executive Order to Dismantle the Department of Education

Last week President Trump signed an Executive Order to dismantle the U.S. Department of Education, a move that has sparked widespread debate across the nation and has already prompted legal challenges. Although the text of the order was not immediately published after the signing ceremony, the White House stated that the order would not affect “critical functions” including enforcement of civil rights laws.

Shortly after the signing, the President announced the following:

• “Special needs funding” for students will be overseen by the Department of Health and Human Services.
• Student loans will be moved to the Small Business Administration.

In addition, the Department of Education announced cuts of nearly 50% of its workforce, including the Office for Civil Rights (OCR) which is tasked with enforcing Title IX and other civil rights laws.

All of these announcements beg the question: how does this impact Title IX? Here are some questions we are receiving.

What will happen to the 2020 Title IX regulations?

In short, nothing. Right now the 2020 Title IX regulations remain law. That means that schools and institutions should continue to ensure how they respond to and address sexual harassment complies with the 2020 regulations. Any changes to the 2020 Title IX regulations must go through the formal rulemaking process which historically takes years.

Is OCR still enforcing Title IX?

Yes. The Office for Civil Rights recently initiated directed investigations into institutions and districts under Title IX; however, these investigations center around the administration’s interpretation of Title IX as it applies to transgender athletes. One that has moved quickly is OCR’s investigation into the Maine Department of Education (MDOE). Currently, OCR has proposed a resolution agreement with the MDOE that provides insight into demands that could be broadly applicable to all schools regarding this particular issue. More to come from ICS on this.

We anticipate that enforcement of Title IX will ultimately move to the Department of Justice. Regardless of where enforcement eventually sits, we expect a significant uptick in litigation against schools for violation of Title IX especially arguments of due process violations.

As a Title IX professional, is there anything I need to be doing now in light of the Executive Order?

Continue to stay informed, but understand that things are evolving rapidly. Keep in touch with your legal counsel, your Title IX community, and experts following this area closely. Title IX Professionals should consider what, if any, communications are necessary to their community to both offer care and support and inform on their specific school’s response to any changes as they occur.

Conclusion

No one has all of the answers on how these recent changes with the Department of Education will impact Title IX and civil rights work. Our team at ICS will continue to keep you informed. Get the latest information from us by subscribing to our blog, The Law and Education podcast, or Living Title IX on YouTube. You can also follow us on Facebook, Instagram, or LinkedIn. In the meantime, keep pressing forward with your compliance efforts, including following your policies and procedures already in place.