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WATERTOWN, Wis. – President Biden’s tremendous Title IX changes are worrying Wisconsin school-board members, who fear the new rules could “throw out” the relationships the school district has been building with stakeholders to work together for transgender students.
One Waukesha County-area school-board member, who kept his name and school district private due to the sensitive nature of the topic, told The Post that the new Title IX is a “top-down, one-size-fits-all approach” — and plain old bad policy.
For the last two months school districts in Wisconsin and across the country have been struggling to figure out how they should implement Biden’s expansive and convoluted Title IX changes.
The Biden administration did not make implementation an easy task. Under the new guidelines, all Title IX sexual-harassment complaints (now called “notifications”) for actions that took place before the new policy goes into effect Aug. 1 need to be processed under the much less prescriptive 2020 regulations — meaning school districts and staff will need to be trained in both the 2020 and the 2024 regulations.
The “2024 Final Rule,” as it is known, covers all forms of “sexual discrimination,” reaching well beyond the sexual-harassment scope of the 2020 Title IX regulation, let alone the original 1972 law, which prohibited discrimination on the basis of sex alone.
Under the 2024 Final Rule, “sexual discrimination” is expanded to include sex stereotypes, sex characteristics, sexual orientation and gender identity.
It also broadens the definition of unwelcome sex-based conduct and reverses a Trump-era rule outlining procedural protections for those accused of sexual harassment and assault.
These sweeping new definitions mean that requiring students to use bathrooms that correspond to their biological sex and using the wrong pronouns (intentionally or not) to describe fellow students could now constitute Title IX violations.
The regulation, which is riddled with legal complications for districts, is already under an injunction in multiple states.
And the timing is under scrutiny as well — making these rule changes in April of an election year means that if Republicans take over Congress after November, they won’t be able to easily reverse them under the Congressional Review Act.
Twenty-two states joined a lawsuit against the Department of Education arguing the regulation is unlawful.
Last week, in a case brought on behalf of Young America’s Foundation and Moms for Liberty, a federal district judge in Kansas put an injunction on Biden’s changes in the states of Kansas, Alaska, Utah, Wyoming and every school “attended by members of the Young America’s Foundation and the children of Moms for Liberty members.”
Those schools with students of Moms for Liberty members in Wisconsin are covered under the injunction, meaning they cannot implement the policy while awaiting a final ruling.
The Post obtained a memo from Neola, a website serving as a policy guide to help school districts in several states navigate the evolving legal landscape in education.
It states that under the new guidelines, sexual discrimination could include claims of unequal athletic opportunities, admissions discrimination, pregnancy discrimination, discrimination in courses of academic programs and retaliation.
The scope of the rule change applies, according to Neola, to sexual discrimination in “any setting over which the District asserts disciplinary authority.”
This means districts should also examine their cyberbullying policies and whether their athletic code of conduct is “enforced 24/7,” the site warns.
Discrimination based on sex in athletic programs under Title IX has garnered national attention, including from all-American swimmer and five-time SEC champion Riley Gaines, who made headlines for challenging trans participation in women’s collegiate sports.
But Neola notes these issues will not be addressed until after the election.
The threat hanging over school districts should they fail to comply with this sweeping and complex policy change?
Legal sanctions or loss of federal funds, promising a significant impact to cash-strapped school districts across the country.
School Boards for Academic Excellence is building a nationwide network of state-based school-board associations focused on academic achievement and empowering parents and students.
SBAE Executive Director David Hoyt told The Post its members have contacted the group about the rule change.
SBAE is advising school boards to wait and see how the Title IX regulation change is settled in court.
In a situation where the school district is under pressure to implement the rule changes now, Hoyt advises districts to implement a policy that “leaves parents in the driver’s seat.”
SBAE’s amendment for the Neola policy notes: “For Title IX compliance purposes, the Board defers to the parent or legal guardian of each student to declare in writing to the school administration, upon admission, the gender identity of said student.”
That policy would have helped the Sun Prairie School District last year, when an 18-year-old student who self-identified as a girl allegedly walked into a ladies’ room fully naked, exposing male genitalia to four freshman female students showering in their swimsuits.
In response to that case, the conservative advocacy group Wisconsin Institute for Law and Liberty filed a Title IX complaint on behalf of the young female students, saying the school district should have treated the incident as a Title IX violation.
Appropriately balancing student rights is top of mind for one school-board member from a district in Milwaukee County who spoke to The Post anonymously.
The member cited concerns about how school districts will handle and report incidents of sexual harassment under the new regulation in all situations, including straight-on-straight and straight-on-disabled incidents.
One person, the Title IX coordinator for each school district, is allowed to be responsible for both investigating and decision-making under the new regulations, a “single investigator” model that was prohibited under previous rules.
Sexual harassment is happening, the Milwaukee County school-board member told The Post, and schools need to handle situations in a commonsense, constructive way on a student-by-student basis, which takes into account the rights of everyone involved.
Whether the new regulations will allow districts to use that approach is up for debate as districts look at implementing the hundreds of pages of Title IX regulation changes.
The problem, the member continued, is that the practical effect of such major changes can’t be known until they’re fully implemented.