Title IX Ping Pong

After a stark departure from previous administration policy, the Biden administration will seek, under Secretary Cardona, to re-establish the direction where Obama/Biden sought to take Title IX a decade ago. In order to re-orient agency oversight of Title IX toward protecting victims, the administration will need to navigate recent court decision that support the prior administration rules, protect survivors against defamation suits, and clarify the department’s interpretation of “sex.”

Recent court decisions as guidance will make it harder for the Biden administration under Secretary Cardona to reverse the lowered bar for anti-male bias, but will require robust due process protections due to the nature of the legal decisions around the DeVos rule. Supporting the rights of accused while also providing safe support for survivors to report future crimes.

One step the administration could take is new action to require enhanced protections of survivors against defamation lawsuits, which have become more prevalent since the Devos edits to Title IX guidance. Schools should be required to have a sexual assault and violence liaison and independent Title IX coordinator at each institution. At too many institutions, these positions are combined with an EEOC liaison making prevention, enforcement and investigation unmanageable.

The department will also need to issue guidance memos clarifying the department’s intent to construe ‘sex’ in Title IX as meaning more than simply “biological sex” but as more inclusive of all individuals. This could prompt a challenge in the Supreme Court in the wake of the 2020 Bostock v Clayton County ruling that Title VII of the Civil Rights Act of 1964 outlawing discrimination based on sex including gay and transgender individuals. While the conservative make-up of the court might be cause for hesitation, under the Cardona tenure in the education department, the ruling in Bostock v Clayton leaned heavily on individual rights, an area of strength in traditional conversative circles.

By Matt Grinsell

Extensive experience as instructional and administrative leader assisting corporate, university and PK-12 organizations in fostering constructivist 21st Century learning for employees and students with emphasis on technology-based teaching and learning initiatives.

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