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Illustration by Justin Morrison/Inside Higher Ed
An increasing number of Republican-led states say they won’t comply with the Biden administration’s new Title IX rule, mainly arguing that its protections for transgender students conflict with their state laws. These defiant directives are putting public colleges in a serious dilemma as administrators weigh whether to risk their federal funding to appease state leaders—or follow federal regulations and potentially face the ire of state leaders.
“They very much feel damned if they do and damned if they don’t because they are now forced into a position where they must be noncompliant with either state or federal law,” said Brett Sokolow, former executive director of the Association of Title IX Administrators and now chair of the organization’s advisory board.
So far, officials in Arkansas, Florida, Louisiana, Montana, Nebraska, Oklahoma, Texas, and South Carolina—most of them governors—have said in letters, statements, press conferences or executive orders that their states will not follow the new Title IX regulations. The rule applies to every school at the K-12 and postsecondary level that receives federal money. So far, most state officials have either focused on K-12 schools or made general statements that their state will not comply, while others have specifically mentioned colleges.
Colleges are already facing a tight Aug. 1 deadline to comply with the new Title IX regulations that dictate how they respond to reports of sexual harassment and misconduct, accommodate pregnant students and protect students from sex-based discrimination, including those who are gay or transgender. The provisions codifying protections for LGBTQ+ students have received the most criticism from Republican lawmakers and officials, though they’ve also raised objectives to several other changes that they say infringe on the due process rights of those accused of misconduct.
“President Biden wants to force every school across the country to treat boys and men as if they were girls and women and to accept every student’s self-declared gender identity, exceeding his authority as President in order to impose a leftist belief on the next generation,” Texas Governor Greg Abbott wrote in a letter late last week to Texas colleges directing them not to follow the new rule.
By Aug. 1, Title IX coordinators and other college officials have to review the 1,500-page regulations, determine what changes need to be made to their campus policies—especially those concerning investigations of sexual misconduct—and then update all applicable policies and procedures. Their employees need to receive training on the new Title IX rule by the time it goes into effect as well.
It’s a time-intensive summer endeavor for administrators everywhere. But in the states where officials have been directed not to comply, the process is now fraught with a different level of uncertainty. Adding to it is a growing number of lawsuits seeking to block the regulations from taking effect. At least 20 Republican-led states, including those who are planning to not comply, along with a number of conservative groups, have filed lawsuits challenging the legality of the rule.
While the federal courts weigh the legal challenges and college officials wait to see if all the new regulations will hold up, they are left to try and thread the needle of complying with the federal government’s rules while somehow following state law—which might not be possible.
“There’s an element of political theater that’s working here, and there’s an element of using this issue in a political moment to almost intentionally create stress, and that is unhelpful,” says Peter McDonough, general counsel at the American Council on Education.
Inside Higher Ed reached out to the flagship universities in the eight states to see how they are handling the directives; only two responded. The University of Oklahoma is “currently engaged in a thorough review of the Title IX rule,” a spokesperson said. Similarly, officials at the University of Montana are reviewing the rule and working with stakeholders to identify changes to campus policies and procedures.
“We will also monitor legal challenges to ensure UM remains compliant with relevant law,” said Dave Kuntz, director of strategic communications at the University of Montana. “While some policies will likely be amended, UM’s institutional commitment to stop, remedy and prevent recurrence of discrimination remains unchanged.”
Universities are keenly aware of what’s at stake here. In order to receive federal financial aid, including Pell grants and student loans, colleges agree to follow a set of conditions, which includes complying with Title IX regulations. Public colleges and universities in the eight states received $12.7 billion in federal student aid in the 2022–23 academic year, according to federal data. The eight flagships received about $1.7 billion.
“So the answer, if you don't like the terms, is to not accept education funding,” Joe Storch, senior director of compliance and innovation solutions at Grand River Solutions, a company that works with colleges on Title IX and other issues. “Now, that’s not a realistic answer in any of the 50 states for K-12 or most of higher education.”
Storch and other experts interviewed say the courts will ultimately decide on the conflict between federal and state laws. In the meantime, he said, “What I think most institutions are doing is updating their policies to be compliant with the requirements by Aug. 1, while keeping one eye on the courts to see if there will be any last-minute changes."
Colleges have no choice but to move forward now, Storch said, partly because some are required to work with their faculty on policy updates. Depending on state policy, others have to publish any changes ahead of time to provide public notice, or submit them to a state agency or legislature.
“It’s not really something colleges can just wait on until the last minute,” he said.
Why Are States Defying the New Rule?
Republican governors and other officials say that the new Title IX rule conflicts with their state laws, especially those aimed at preventing transgender students from accessing bathrooms or sports teams that align with their gender identity. Thus, they claim they shouldn’t have to follow the regulations.
The Biden administration’s rewrite clarified that prohibited sex-based discrimination under Title IX includes discrimination based on sexual orientation and gender identity, offering LGBTQ+ students more protections. Conservatives and other critics say that provision “redefines sex” and is contrary to the original purpose of Title IX, which was aimed at ensuring women and girls could access their education. They argue that the new regulations would prohibit gender-specific facilities, such as restrooms and locker rooms, and infringe on women’s sports. (The Biden administration is working on a separate proposal that would prohibit blanket bans of transgender students participating in the sport that aligns with their gender identity.)
Arkansas Governor Sarah Huckabee Sanders signed an executive order on Title IX in early May, declaring that “at no point should Arkansas law be ignored.” Her state has several laws on the books that define sex “on the basis of biology,” require public schools to designate restrooms based on sex and mandate students to participate in the sport that aligns with their assigned sex at birth, not their gender identity.
Another law in Arkansas, among other states, prevents schools and public colleges from requiring employees to use a student’s preferred pronoun—which is also at odds with the new Title IX regulations. Referring to a student with the wrong pronouns could violate federal regulations if the conduct is so “sufficiently severe or pervasive” that it prevents them from participating or benefiting from an educational program or activity.
The legality of the state orders is unclear, but colleges can’t afford to dismiss them entirely. Governors and state lawmakers can exert considerable pressure on state institutions, especially when it comes to their budgets and state funding. At the institutions themselves, governing boards appointed by state officials could be involved in deciding whether to buck the Biden administration. Even at universities where they aren’t directly involved in that decision, those boards can decide the fate of the university president or chancellor.
“Even though what a governor says in the moment may not have the force of law, you don’t ignore it,” McDonough said. “You can try to figure out where this might lead. Is the governor aligned with where we think the state legislature will be? Is there a risk that our funding near term or longer term will be impacted? Those types of assessments have to be made.”
For its part, the Education Department doesn’t see any gray area in the question of whether Title IX can preempt or override conflicting state laws.
“In the event of an actual conflict between state or local law and Title IX or its implementing regulations, a conflicting state law would not permit a recipient’s noncompliance with Title IX,” officials wrote in the final regulations.
Education Secretary Miguel Cardona also didn’t leave much room for disagreement when asked at a House hearing last week about states’ plan to not follow the regulations.
“Federal rules trump state rules,” he said.
‘Catch-22’ for Title IX Coordinators
No matter what college officials decide, someone is going to take them to task for their decision, noted McDonough.
“You’ve got to figure out, practically speaking, what to do come Aug. 1 and you have the potential for either having the state come down on you or the federal government come down on you,” he said.
For Title IX coordinators on campuses, Sokolow said, the situation presents a “Catch-22” that’s leaving them feeling exposed to potential lawsuits and other backlash. Their gut reaction is to follow the federal regulations, but he said that some Title IX coordinators have been told by their universities’ general counsels to follow state orders. Others have been told by their state education departments to not even prepare for compliance.
Still, he said coordinators in states that aren’t planning to comply are working to quietly update their policies in the background so they are ready to go Aug. 1, hoping that the lawsuits are resolved before then. Title IX coordinators can be held personally liable for failing to uphold a person’s federal civil rights.
“They feel like they don’t have any other choice,” Sokolow said.
Sokolow said the state leaders asking for defiance are subjecting their public schools and colleges to “significant lawsuits” from students or employees who don’t get their Title IX rights once the regulations take effect.
“This is putting schools in the middle of warring factions—federal and state,” he said. “Ultimately it’s the parties, whether they’re students or employees, who are going to suffer because of this political attempt to turn Title IX into a red-versus-blue football.”
