Transcript
Speaker: Hello and welcome to a special bonus episode of the Human Restoration Project Podcast.
Speaker: My name is Nick Covington.
Speaker: Before we get started, I wanted to let you know that this episode is brought to you by our supporters, three of whom are Randy Ziegenfuss, Corinne Greenblatt, and Elizabeth Johansson.
Speaker: Thank you so much for your ongoing support.
Speaker: We're proud to have hosted hundreds of hours of incredible ad-free conversations over the years.
Speaker: So if you haven't yet, consider rating our podcast in your app to help us reach more listeners.
Speaker: And of course, you can learn more about Human Restoration Project on our website, humanrestorationproject.org, and connect with us everywhere on social media.
Speaker: Now, it's not every day that you get an email from the ACLU.
Speaker: And if you aren't aware, since being co-founded in part by Helen Keller in New York City in 1920, the American Civil Liberties Union has been involved in dozens of major cases defending the fundamental civil rights of individuals and causes, both popular and very much not so.
Speaker: In 1925, the ACLU represented high school science teacher John Scopes in what became known as the Scopes Monkey Trial.
Speaker: Nearly 30 years later, they played a significant role in the Brown v. Board decision that overturned separate but equal education for black and white students.
Speaker: So when they reached out wanting to do a podcast episode with us about the state of Title IX in 2024, I had to say yes.
Speaker: In the past, we've done episodes about how classroom teachers can best support LGBTQ students in potentially hostile policy environments.
Speaker: but we're well overdue for a national look at the current rights under Title IX for LGBTQIA plus students, pregnant and parenting students, and for all students facing sex-based harassment and assault and the obligations schools have to protect them.
Speaker: So I'm joined today by Janessa Calvo-Friedman.
Speaker: Thank you so much for having me.
Speaker: My name is Janessa Calvo-Friedman.
Speaker: I'm a senior staff attorney at the ACLU.
Speaker: I work specifically in the Women's Rights Project.
Speaker: So I suppose we should start at the most basic level.
Speaker: What is Title IX and what are the rights of students and the responsibilities of schools, both at the K-12 and university level under the law?
Speaker: So Title IX is a federal law that was passed in 1972 that prohibits all sex-based discrimination in any K-12 school, college, or university that receives any federal funding.
Speaker: So importantly, it's not just public schools.
Speaker: If there's a private school that receives federal funding, Title IX also applies to it.
Speaker: And its core provision is only 37 words long.
Speaker: What it says is that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity that receives federal funding.
Speaker: So what that means is that students, regardless of their sex, have the same rights to play sports, to not be subjected to sex-based harassment and sexual violence, to not be required to follow a sex-specific dress code, to have equal access to education in all fields, even if they're non-traditional for one's gender, and to have accommodations for pregnant and parenting students to ensure that they can also equally access education.
Speaker: And really importantly for schools, it means that the school itself has a legal obligation to prevent, address, and remedy instances of sex-based discrimination or harassment.
Speaker: And that failure to do so can result in the school losing its federal funding and other sort of legal ramifications.
Speaker: And I understand that there have been updates to Title IX in 2024.
Speaker: Could you walk listeners through what's new or different this year?
Speaker: Yeah, so as a little bit of background is that in the Title IX statute itself, the Department of Education is directed by Congress to, quote, effectuate the provisions of Title IX.
Speaker: So basically to make rules to instruct schools on how to prevent and address discrimination on the basis of sex.
Speaker: And so to fulfill that obligation from time to time, the department engages in a process called rulemaking, where they get input from the public and they enact regulations to give that guidance and clarity to schools.
Speaker: Since the core of the statute is just those 37 words, in order to encourage compliance and for schools to understand their obligations, the rules wind up being really important.
Speaker: And so there was a rulemaking process that culminated this year.
Speaker: And that resulted in a new Title IX rule that went into effect in August 1st of 2024.
Speaker: It covers a lot of different areas, but I would say there are three primary areas or three of the primary areas where it provides guidance is one, that Title IX protects LGBTQIA plus students from discrimination.
Speaker: Two, that schools must provide reasonable accommodations for pregnant and postpartum students.
Speaker: And three, that schools must provide stronger protections for students from harassment and assault.
Speaker: So I can say a little bit more about each of those.
Speaker: So first, it explicitly prohibits in the rule itself discrimination against LGBTQ students and employees by specifically defining discrimination on the basis of sex to include discrimination on the basis of gender identity and sexual orientation.
Speaker: So what that means is that a school cannot prevent a person who is transgender from participating in an educational program or activity that is consistent with that person's gender identity, as well as any other ways in which students are discriminated against.
Speaker: Second, the new rule provides more specific protections to students, employees, and applicants from discrimination based on pregnancy or pregnancy-related conditions, including termination of pregnancy.
Speaker: And that has been a rule since 1975.
Speaker: So what's new is that the rule adds more specifics in 2024.
Speaker: So for example, it makes clear that students and employees must have access to clean private lactation space in order for a school not to discriminate on the basis of pregnancy.
Speaker: It makes clear that schools have to provide reasonable modifications for students.
Speaker: So some examples of that could be changes to a student's schedule, access to a parking lot if they need to drive, excused absences related to
Speaker: childbirth, miscarriage, abortion, and or recovery.
Speaker: Third, it requires schools to address and investigate complaints of sex-based harassment, restoring the standards that were in place for decades and that mirror those standards that are used for other forms of harassment.
Speaker: So this requires a little bit of history to explain its significance.
Speaker: Under the Trump administration, the Department of Education enacted a rule in 2020 that was focused on sexual harassment.
Speaker: And it changed what the department had required of schools for decades.
Speaker: And it made it different than what the department requires schools to do for other forms of harassment, such as race-based harassment or disability-based harassment.
Speaker: And some specific ways that the Trump 2020 rule did that was it redefined sexual harassment to exclude misconduct unless it was both severe and pervasive.
Speaker: It directed schools to ignore any Title IX reports of sexual assault that occur off campus or off school grounds, regardless of how they affect on campus or survivor's education on campus.
Speaker: It said that schools would only be held accountable if their failure to respond to sexual harassment, what is, quote, deliberately indifferent.
Speaker: And all of those things might sound technical, but they had a really significant impact.
Speaker: In 2020, the department itself anticipated that under those changes, four-year institutions would investigate 32% fewer sexual harassment and assault complaints.
Speaker: So one of the goals of the 2024 rule has been to restore the prior standards.
Speaker: So what that means is that the 2024 rule tells schools that it must investigate and respond to all sex-based harassment complaints and
Speaker: where the conduct is severe or pervasive.
Speaker: So the conduct can either be severe, meaning a single instance is so significant that it would interrupt somebody's ability to access their education, or it can be conduct that
Speaker: You know, if it happens one time, it wouldn't interrupt somebody's education.
Speaker: But if it happens over and over again, it would change their ability to access education.
Speaker: So, you know, a single instance of saying to somebody,
Speaker: to a girl, girls can't do math, maybe that's not severe enough to be sex-based harassment.
Speaker: But if you said it every day, maybe that does, you know, it really depends.
Speaker: It's a very fact-intensive inquiry, but maybe that does become severe enough that it would have an impact on that person's education.
Speaker: And then in that case, under the new rule,
Speaker: Schools would have to investigate and respond to that.
Speaker: But under the prior standard, they wouldn't.
Speaker: So that's sort of like a core provision.
Speaker: The severe or pervasive is a core provision of what the kind of harassment is that schools have to respond to.
Speaker: It also directs schools to consider off-campus or off-school grounds conduct when it has an impact on being able to access education on school grounds.
Speaker: And it holds schools accountable if their response to complaints of sexual harassment or assault is not prompt and effective, rather than only holding schools responsible if they're deliberately indifferent, which is a very sort of high standard to me.
Speaker: Yeah, it sounds like a little bit of an oxymoron, deliberately indifferent to pair those two things together.
Speaker: So shifting the standard for me kind of seems like a reasonable or a rational sort of thing to do.
Speaker: We were talking before the recording about how states have been challenging a lot of these provisions.
Speaker: How are states challenging those changes given that they conflict with a lot of state level anti LGBTQ legislation?
Speaker: You know, you had mentioned bathroom bills, again, before recording pronouns, women's sports, and all of those kinds of things that we're seeing.
Speaker: So around the time that the final rule was promulgated, 26 states, along with individuals, organizations, and school districts, filed federal lawsuits.
Speaker: And the federal lawsuits are focused on the rules protections for transgender students.
Speaker: And then they use those baseless attacks on transgender students to attempt to prevent all of the rules provisions from going into effect.
Speaker: And so they're going to court and saying it violates their rights or it is inconsistent with the statute to require them to allow kids who are transgender to use bathrooms consistent with their gender identity, to participate in school without being subject to intentional, consistent misgendering, for example.
Speaker: And so far, the states have been successful in achieving temporary injunctions in 26 states and in hundreds of schools where the organizations have members.
Speaker: One thing to say that's important is like those cases are continuing to be litigated.
Speaker: So that's just the first step on what will be a long process of figuring out exactly what the Department of Education is allowed to say regarding the Title IX rules.
Speaker: But the injunctions just mean that the rule is temporarily blocked from taking effect.
Speaker: More concretely, that the Department of Education can't open an investigation or cut off school funding by saying, well, school, you're not complying with the 2024 rule.
Speaker: What makes this legal environment complicated, where I really appreciate the opportunity to speak with you, is that the injunctions don't relieve schools of their obligations necessarily.
Speaker: First of all, to protect the Title IX rules of students.
Speaker: And students have an independent right to sue a school in court for violating their rights.
Speaker: And that's true even in a school where the department's enforcement itself is enjoined.
Speaker: So for example, there's a case in Wisconsin where a girl who is transgender has sued her school for access to bathrooms that are consistent with her gender identity.
Speaker: That school is a place where the 2024 rule is enjoined from the department enforcing it or from it going into effect.
Speaker: But the court has allowed the student and ruled for the student to go, you know, to be able to force her school to allow her to have access to bathrooms that are consistent with her gender identity, because under the statute itself, that is her right.
Speaker: Because, but for the fact that her sex assigned at birth was,
Speaker: was male, she would be able to access girls' bathrooms.
Speaker: And so the school is harming her because of her sex assigned at birth.
Speaker: And that just violates the statute itself.
Speaker: And the injunctions also don't relieve schools of their obligations to comply with state laws that have more protections, as you just noted.
Speaker: So Title IX is a floor, not a ceiling.
Speaker: And importantly, these lawsuits are not saying that schools can't provide additional protections for LGBTQIA students.
Speaker: They're just saying that
Speaker: The department doesn't have the authority under the Title IX statute to create the exact rule that they created.
Speaker: And so where state laws require additional protections, schools still must comply with the additional state laws.
Speaker: So what are the obligations schools have to protect LGBTQIA students?
Speaker: The obligations to protect LGBTQIA students in places where there's no statewide injunction, and there's 24 states where there's no statewide injunction, that means that the 2024 rule is in full effect and schools must comply with the 2024 rule and the department will enforce the 2024 rule.
Speaker: And that explicitly says gender identity
Speaker: and sexual orientation and sex stereotypes cannot be the reason for treating students differently.
Speaker: And that's true unless, and there's this one sort of complicated exception, which is if a school is on a list where a member of one of these membership organizations that have brought, are plaintiffs in the lawsuits, if they h ave a
Speaker: a member or a child of a member in the school, then in whatever state the school is in, the 2024 rule is enjoined from being enforced by the Department of Education.
Speaker: And the list of schools where the 2024 rule is enjoined is available on the Department of Education's website.
Speaker: And that list is being updated as these organizations have members.
Speaker: So for the most up-to-date information on schools,
Speaker: where there are injunctions in individual schools.
Speaker: And for the most sort of up-to-date information on the cases in general, people should consult the Department of Education's website.
Speaker: Where there are injunctions, I think that the obligations that schools have to students are...
Speaker: what we were just talking about.
Speaker: And so those are one, that the statute itself means that private plaintiffs, private students can continue to bring lawsuits to enforce their statutory rights.
Speaker: And the statute itself provides, because it says you cannot discriminate on the basis of sex, that means under the Supreme Court's precedent in a case called Bostock, which interpreted a very similar statute, but in the employment context, that schools cannot treat somebody differently because of their gender identity or sexual orientation.
Speaker: And so we believe that it's in every school's best interest to voluntarily provide the protections that we argue and courts of appeals have agreed with are the statutory obligations under the Title IX statute for LGBTQIA students.
Speaker: In addition to the requirements that schools have to their LGBTQIA students,
Speaker: They also, notwithstanding the injunctions, continue to have obligations to their pregnant and postpartum students.
Speaker: We really encourage schools, even where the injunctions are in effect, to look to the 2020 rule as providing guidance to those schools on the meaning of the prior regulations that are in effect.
Speaker: Because even with the injunction, schools still have an obligation since 1975 to not discriminate on the basis of pregnancy.
Speaker: And what the rule provides schools is guidance for how the Department of Education understands discrimination on the basis of pregnancy to me.
Speaker: And so although the Department of Education might not be able to say, well, we're going to enforce this rule against you, we're going to cut off your funding because you don't have a clean lactation space, that doesn't relieve schools of their obligation to not
Speaker: discriminate on the basis of pregnancy, which the department has told you includes providing a clean lactation space.
Speaker: So by not providing the clean and accessible lactation space, just as one concrete example, you are subjecting yourselves to, you meaning the school, would be subjecting itself to violating the prior established rule, which is that you can't discriminate on the basis of pregnancy.
Speaker: You know, especially because none of the lawsuits focus on these provisions.
Speaker: None of the courts have said anything about the specific provisions being potentially unlawful.
Speaker: They've just been enjoined from going into effect because based on these hostile attacks against transgender kids, the courts have enjoined the entire rule from going into effect.
Speaker: But they still, the provisions of the rule on pregnant and postpartum students still provide really helpful and important guidance to schools that they can and should comply with right away.
Speaker: One other thing is, so the principle that Title IX is a floor, not a ceiling also applies to individual schools' policies.
Speaker: And so schools can have, even in schools where the injunction is in place, and so
Speaker: They are in their Title IX processes.
Speaker: They must follow the 2020 Trump rules, which requires schools to respond to a smaller amount of sex-based harassment and assault.
Speaker: Schools can continue to have
Speaker: internal anti-harassment policies that protect and respond to harassment that doesn't meet the 2020 definition of harassment and assault or sex-based harassment.
Speaker: And so what that means is that while school's Title IX process is
Speaker: where there are injunctions and schools are following the 2020 rules, only responds to harassment that is both severe and pervasive.
Speaker: There is nothing stopping schools.
Speaker: And in our view, schools should have their own anti-harassment or anti-bullying policies that prohibit harassment that is severe or pervasive.
Speaker: or that addresses conduct, for example, that occurs during a study abroad program that is then making it very difficult for students to be able to access education when they're back on campus.
Speaker: If, for example, there was a sexual assault between
Speaker: between two peers and then they're in the same class back when they are on campus.
Speaker: Those are examples of conduct that isn't covered by the 2020 rule, but schools can and should respond to using their own processes in order to do what we know most schools want to do, which is provide equal access to all of their students.
Speaker: So you had mentioned that parents can or people can check out the Department of Education's website simply because, you know, changes to federal law, scattered statewide enforcement, everything else leads to a lot of confusion.
Speaker: Are there any other places that...
Speaker: say students themselves, educators, parents can look at to get informed about what's happening with Title IX in their state specifically?
Speaker: Like if I'm an Iowa parent or a New York parent or a North Carolina parent, is the Department of Education the best spot for that?
Speaker: Is there anywhere else they can look to?
Speaker: So in certain states, the attorney generals are providing guidance.
Speaker: And so looking at the guidance from the state attorney general's offices can be helpful.
Speaker: We at the ACLU, along with coalition partners, are also trying to keep some
Speaker: materials updated to explain the state of the Title IX rule and or the Title IX statute and rule, the Title IX landscape, and what we believe students' rights are and schools' obligations are under Title IX.
Speaker: And our intention is for that to be available for students and parents to explain to their school administrations what the obligations are if they feel that their rights are not adequately being protected.
Speaker: Because school administrators are also confused about this landscape.
Speaker: It's just, it's a really confusing legal landscape.
Speaker: And even, you know, schools that are trying to do the best they can to keep up are sometimes misunderstanding what their obligations are.
Speaker: And so we think it's really important for students and parents to understand their obligations so that they can also use that to educate their school administrations and in whatever state that they're in.
Speaker: That's a great point.
Speaker: I think especially, you know, as guidance trickles down from federal to state and then has to go through state bureaucracies to hit, you know, people forget we don't have one unified national school system, right?
Speaker: So it has to get down to your school level and, you know, school boards are democratically elected.
Speaker: Those are great places to start informing school board members.
Speaker: They can, you know, lean on superintendents who can lean on administrators and those kinds of things too.
Speaker: That's a really excellent point.
Speaker: So if, Janessa, people want to stay updated or get involved in the work that the ACLU is doing on this and any other issue impacting education, is there a best place to get started and to continue that work?
Speaker: Yeah, I think the best place to get started is with the fact sheet that we have put together and that we're going to continue to update as any changes happen.
Speaker: Oh, that's great.
Speaker: And I've included the fact sheet in the show notes to this episode.
Speaker: We'll promote it on our website and in our social media too alongside this.
Speaker: So people can read that.
Speaker: A good companion to listening to Janessa Cavill-Friedman explain it to you.
Speaker: So thank you so much for joining me today, Janessa.
Speaker: Thank you so much for having me.
Speaker: Thank you again for listening to our podcast at Human Restoration Project.
Speaker: I hope this conversation leaves you inspired and ready to start making change.
Speaker: If you enjoyed listening, please consider leaving us a review on your favorite podcast player.
Speaker: Plus, find a whole host of free resources, writings, and other podcasts all for free on our website, humanrestorationproject.org.
Speaker: Thank you.
