A School of Education faculty member recently offered her expertise on ongoing Title IX lawsuits across the country to a pair of national media outlets.
Suzanne Eckes, the Susan S. Engeleiter Chair in Education Law, Policy, and Practice in the UW–Madison School of Education’s Department of Educational Leadership and Policy Analysis, spoke about the future of Title IX enforcement in schools across the country in articles published by The Hechinger Report and Salon.
The Hechinger Report article discusses a series of lawsuits related to Title IX across the country and how those lawsuits have led to a patchwork of enforcement from state to state.Title IX is a federal civil rights law that prohibits sex-based discrimination in any school or any other education program that receives federal funding.
In the story, Eckes points out the Biden administration aimed to give “the force of law” to new Title IX rules advanced by his administration. Those rules expanded the definition of “sex” to include sexual orientation and gender identity.
Eckes said the new rules are in line with a June 2020 Supreme Court decision, in Bostock v. Clayton County, that found sex-based employment protections under Title VII covered sexual orientation and gender identity.
“Title IX cases look at Title VII and Title VII cases look at Title IX. This is nothing new,” she said.
Eckes also pointed out the lawsuits center on transgender students’ use of restrooms. She said case law has repeatedly supported the right of students to use the restroom that aligns with their gender identity.
The Salon article examines the same issue, with a focus on the Supreme Court’s decision to uphold legal blocks — injunctions — on the Biden administration’s new rules in 10 states.
“It’s a really confusing patchwork right now,” Eckes said. ”It’s just causing a lot of confusion, I would say, across the country, whether you follow the new Biden administration rules in its interpretation of Title IX or not.”
The story also points out the injunctions are blocking elements of the Biden administration rules that are not mentioned in lawsuits. The new rules included provisions related to access to lactation spaces for pregnant students, prohibiting schools from asking about job applicants’ marital status, protecting students from retaliation for filing Title IX complaints, and outlining when a student can receive a live Title IX hearing with cross-examination.
Eckes argues the Supreme Court should have agreed with the government’s request to limit the injunctions to specific provisions contested in the lawsuits.
“There was no reason to block the entire rule, because what they’re really attacking in most of these lawsuits is focusing on transgender students really,” Eckes said. “They weren’t attacking the pregnant and parenting student section of law. They weren’t necessarily, or at least across the board, attacking the changes around the standard for investigating sexual harassment in universities in K 12 schools. So why not let those parts of the new rule stand?”
Read the full Hechinger Report article, “America’s schools and colleges are operating under two totally different sets of rules for sex discrimination,” here.
Read the full Salon article, “Supreme Court leaves LGBTQ+ students without crucial civil rights protections ahead of school year,” here.