A New Title IX Era Brings Confusion and Frustration

The Biden administration’s new Title IX regulations, which strengthen protections for LGBTQ+ students and change how colleges respond to reports of sexual harassment, take effect today nationwide. Kind of.

So far, federal judges have issued six injunctions temporarily blocking the Education Department from enforcing the new Title IX rule in 26 states and hundreds of colleges in other states in response to lawsuits challenging the protections for LGBTQ+—and especially transgender—students. The first injunction was handed down June 14 and the most recent one issued July 31. The drip, drip, drip of court orders over the last seven weeks is part of what’s become an incredibly contentious fight over Title IX that’s left college officials fearful, frustrated and unsure about what comes next.

For some universities, the solution has been straightforward: They’ve simply shelved all or most of their planned changes until the injunctions on their states or institutions are lifted—assuming they eventually will be. Others are moving forward to implement parts of the regulations that haven’t been contested in court, such as new protections for pregnant and parenting students.

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Title IX legal experts expect colleges in the 24 states not currently under an injunction to carry out the 2024 regulations. Those in the states under an injunction will likely stick with the rules put in place by the Trump administration in 2020, particularly if their state leaders—like the governors of Florida and Texas—have directed their public colleges and universities not to comply. But some colleges operating under an injunction will fall into a third group, opting for a mix of the 2024 and 2020 rules.

Colleges that don’t comply could face a civil rights investigation or lose their federal funding, though both threats are off the table while there are injunctions. Still, they could face lawsuits from students who say their Title IX rights are being violated, or from groups who take issue with how they implement the new regulations. So how can a college avoid a suit or a federal investigation? The unsatisfying answer is that it’s unclear.

“Everyone is guessing,” said Jody Shipper, managing director of Grand River Solutions, which advises colleges on how to comply with federal civil rights and campus safety laws. Shipper says some of her colleagues have clients who waited until this week to start making changes to comply because they assumed the regulations would be blocked nationally.

“Schools are wanting to do the right thing,” she said. “It’s hard when we don’t know what that is.”

Shipper said that Title IX regulations provide some security for institutions in terms of knowing what definitions of sex-based discrimination to use and what to do if someone files a complaint.

“Everyone had a collective document to sort of look at; we don’t now,” she said. “If it’s campus-by-campus, state-by-state interpretation, on the one hand, I think it’s scarier for schools … On the other hand, there’s a certain freedom if guidance is gone, in that you can decide … If there’s that much freedom, you have to say what you believe is the right thing to do. That pressure is on the school.”

The Biden administration hasn’t provided guidance about what’s expected of those under an injunction, though its lawyers have requested the Supreme Court narrow the scope of the court orders blocking enforcement of the regulations to only the provisions challenged—and let the others go into effect. The justices have yet to weigh in.

Guidance from the Education Department for institutions under an injunction would be “extraordinarily helpful,” said Leslie Gomez, who leads the institutional response group for the law firm Cozen O’Connor along with Gina Maisto Smith. The department released two pages of “pointers for implementation,” but they were only for colleges fully implementing the new rule.

“It’s extraordinarily disruptive, given the cacophony of issues that higher education is navigating,” Smith said of the regulations. The injunctions have only added to the issues, “causing regulatory whiplash of seismic proportions.”

Gomez’s advice to colleges and universities is to “focus on intake, outreach, care and support” and to listen to the needs of their students and broader campus community.

“Details of policy are less critical than the fact that we’re hearing a report or concern or complaint,” she said. “We’re taking action to eliminate the act, prevent its recurrence and address or remedy the impacts.”

But they can’t say whether that approach—likely the safest—will protect colleges from litigation or regulatory enforcement.

None of this is what folks envisioned when the Biden administration rolled out its much-anticipated overhaul of Title IX in April. Advocates and experts predict a confusing start to the school year as students try to sort out what their rights are amid a patchwork of Title IX rules that vary state by state and campus to campus.

“This is not the way we wanted to start,” said Emma Grasso Levine, senior manager of Title IX policy and programs at Know Your IX, a survivor- and youth-led project of the nonprofit Advocates for Youth. “It’s an all-the-more-confusing nightmare for students and administrations … Everything is up in the air, and that means that students’ rights are up in the air.”

Levine and other advocates are urging colleges to implement the 2024 rule, noting that the court orders only prevent the Education Department from enforcing the regulations rather than preventing institutions from adhering to them. But the “intense political climate” around Title IX right now might make college officials more hesitant to do that, she said.

“We’re pushing schools to do the right thing, but it’s an uphill battle with the political climate,” she said.

‘Stand Down’

Until two weeks ago, Zeva Edmondson, the director of the Office of Equal Opportunity and the Title IX coordinator at the University of Nevada at Reno, had been working to prepare for the Aug. 1 deadline—not only with her team on campus, but with a consortium of Title IX coordinators across the state’s higher education system. Their efforts included updating campus policies, adjusting how investigations of sexual misconduct work and preparing new training about Title IX for campus employees and students.

Most of those were relatively simple tweaks, and she felt the biggest challenge would be getting employees on board with the new requirement that they undergo Title IX training annually, rather than every other year, as the Trump-era rules mandated.

But all that work was put on hold when a federal judge in Kansas blocked the regulations from being enforced on campuses that are home to a chapter of Young America’s Foundation, Female Athletes United or Moms for Liberty—conservative organizations that oppose the regulation’s expanded protections for transgender students in particular. UNR was one of those campuses and one of only four in the state of Nevada to be impacted.

Now, Edmondson said, all policy changes have been put on pause until the injunction is lifted—assuming it will be. “We just have to stand down until they give us the green light,” she said.

For students at institutions affected by a court order, it may be difficult to keep track of what regulations their university is operating under—and whether the harassment they are experiencing is even covered under Title IX, said Tracey Vitchers, executive director of It’s On Us, an advocacy organization dedicated to combating campus sexual violence.

The Biden administration expanded the scope of the types of incidents and actions under a college’s Title IX jurisdiction by lowering the standard for sexual harassment and requiring institutions to address conduct that happens off campus. Currently, the standard for sexual harassment is that the conduct is considered “severe, pervasive, and objectively offensive,” but the Biden administration would lower the standard to “sufficiently severe or pervasive.”

A student might be unsure whether an incident of harassment would even “qualify to be investigated,” she said, thanks to “the standard of ‘and/or’ that we’ve seen go back and forth.”

“The landscape is changing almost daily … and what it’s resulting in is this really harmful patchwork of how schools are applying what they think they’re supposed to do, and the end result of that is going to be students are harmed by this patchwork, and by this confusion, and their rights are going to be violated. They’re going to experience harm, they’re not going to trust Title IX to support them, and that is deeply problematic,” she said.

This is especially relevant at the beginning of the academic year, when most students, especially freshmen, learn what Title IX means for them and how to protect their rights under that law. Those include the ability to access supportive measures such as changing classes or moving dorm rooms for those who experience harassment, which includes sexual assault and stalking, among other types of incidents.

More than half of college sexual assaults occur during the first four months of the academic year in a period known as the red zone. How institutions respond to reports of assault can make the difference between a student continuing on with their education or dropping out, according to advocates.

‘Status Quo Should Remain in Place’

UNR isn’t alone in halting its planned Title IX revisions. Elsewhere, universities in entire states have pressed pause.

At the University of North Dakota, officials were told to “follow the injunction and to not implement, obviously, any policies or procedures that would conflict with that,” said Donna Smith, assistant vice president of equal opportunity and Title IX.

A federal judge on July 26 blocked the department from enforcing the regulations in North Dakota and five other states. The university was also affected by a court ruling issued earlier last month that meant universities in the state didn’t have to comply with the regulations. In an email to Title IX leaders, the system’s chief compliance officer, Christopher Pieske, wrote that “until the lawsuit is complete the status quo should remain in place. The 2020 Title IX regulations are still in effect.” He advised them to consult with their legal counsels about how the injunctions could impact their specific campus policies.

We know that when the motivation is risk mitigation, it’s ultimately student and campus safety that is harmed.”

—Tracey Vitchers, It’s On Us

Donna Smith said that a small number of policy adjustments at UND that do not conflict with the 2020 regulations will still move forward, such as expanded protections for pregnant students. The university has had policies to support pregnant students in place since 2022, but in response to the 2024 regulations, it added language encouraging employees to provide resources to any student who tells them they are pregnant.

The Universities of Wisconsin said on social media this week that the system has “suspended permanent and emergency rulemaking regarding Title IX” and that the 2020 regulations remain in effect, even though it released draft policy changes earlier this summer and held public hearings about them. Ten of the system’s 13 universities were included in the conservative groups’ list of institutions under an injunction.

Vitchers said some colleges do not seem to understand the limitations of the court orders and thus are opting to delay all Title IX changes in an effort to mitigate risk, like in Wisconsin. But that can be a dangerous strategy, she said.

“We know that when the motivation is risk mitigation, it’s ultimately student and campus safety that is harmed,” she said.

She advised universities to “overcommunicate” with their students amid the ongoing legal challenges in an effort to keep them abreast of where Title IX stands at their institutions on any given day.

“If an institution is unclear, they need to admit that to their students,” she said. “They need to communicate that the institution is doing what it can to navigate this incredibly complex and seemingly ever-changing landscape around Title IX, and reassure students that as updates become available, that they will communicate them to the student body, and in plain language, [so] they can understand what’s going on and how what is happening is affecting their policies and procedures.”

Still Forging Forward

Not every campus has decided that hitting pause is the best path forward. Some will still implement elements of their planned policy changes, while staying within the injunctions’ relatively wide bounds.

Elon University, a private institution in North Carolina that has been impacted by a court order, will implement a handful of new policies and programs that don’t go against the injunction and aim to make campus a safer place for students, says Megan Karbley, Elon’s Title IX coordinator and director of compliance.

Karbley, who has worked in Title IX for 15 years, joined Elon just months before the new regulations were released. At the time, the university’s Title IX office and other related offices were already beginning to review existing Title IX policies and plan for changes under the new regulations.

“[I was] coming into a new campus knowing that we would have—were supposed to have—new regulations. And I think a lot of coordinators and a lot of offices have been ready for a while, waiting for the regulations to come through,” she said.

Compliance is the floor, not the ceiling.”

—Megan Karbley, Elon University

Although she said that the injunction has thrown a wrench into those plans, her office has been able to move forward with plans that “we already had in place or [that already had] momentum.” For example, the university plans to introduce restorative justice practices into its Title IX resolution process and will offer more training related to how the campus community can use the Title IX office as a resource.

“I kept saying, ‘We’re going to keep trying to make this better and friendlier and more supportive for the people involved, and we don’t need a regulation to do that’ … Compliance is the floor, not the ceiling,” she said. “We’re not doing more training because the regs tell us to do more training, but because we want our campus to know what the resources are.”

But big changes related to things such as who on a college campus is required to report potential incidents of gender-based discrimination or harassment to the Title IX office will be put on the back burner. The new regulations paint with a broader brush concerning what is considered a report of gender-based discrimination or harassment; under the previous regulations, only formal complaints counted, but now verbal disclosures can, too. They also expand who must report such incidents to almost all university employees. The 2020 regulations gave institutions flexibility in determining which employees would be considered so-called mandatory reporters, though colleges over the years have opted for broad reporting requirements similar to what’s in the final rule.

This was shaping up to be a contentious change, Karbley and other experts told Inside Higher Ed, with faculty members arguing that students who entrust them with information about a sexual assault do not benefit from having that information reported against their will. That’s why she began an information campaign even before the regulations were finalized this past April.

“Part of the goal in really increasing our education and outreach is so that if or when we do get told we do have to train all faculty and staff and they are mandatory reporters … so many people will be engaged with the Title IX office through our outreach efforts that it won’t seem like an extra act, that won’t seem like a burden,” she said.

For the time being, the definition of a mandated reporter at Elon will not change, though employees will be tasked with connecting students with certain resources if they disclose harassment or discrimination under the title of “responsible employee.”

Karbley said that the back-and-forth over who is a mandated reporter can be difficult for students who are unsure whom they can go to for what supports.

“Part of our responsibility, I think, is to try to stabilize for the community as much as possible, and, of course, since the [court order] dropped, I have felt like my ability to do that for my campus has been [challenged],” she said. “But I still think there are ways … we can change that as infrequently as possible and decide what’s best for our campuses.”

Leigh Vogel/Getty Images for National Women’s Law Center

Some Hiccups, Even Without Court Orders

Even at institutions where there is no court order blocking the regulations, adapting policies hasn’t exactly been easy.

Angela Catena, Title IX coordinator at the University of New Mexico, said it will be challenging for the 2020 and 2024 regulations to coexist; the Trump administration’s regulations will be applied for any incidents that occurred before Aug. 1, even if they are reported after the effective date of the new regulations.

“How do we have two of the same policies that are always going to be live? And so our policy office is scratching their head, and I’m like, I don’t know, I’m sorry. I don’t know what to tell you,” she said. Once the 2024 regulations have been in effect long enough, she added, UNM will likely bring in consultants to handle any cases that occurred while the old regulations were in effect.

Despite this hiccup, Catena’s office has made a number of changes in response to the new regulations. She said that while the new rule has broadened the range of incidents that violate Title IX, it gives colleges more freedom to respond in a way that best fits particular situations.

Previously, she said, different university policies covered different kinds of Title IX cases, causing confusion over which policy should be used when and slowing the overall process. Now UNM’s Title IX office has developed a stand-alone sex discrimination policy that will govern all Title IX cases, which Catena anticipates will make the process significantly smoother.

To improve flexibility and comfort for victims, the university will hire for a new intake coordinator role, who will be in charge of figuring out if complainants would be best served by the Title IX office or another resource on campus. This is a departure from the process under the Trump regulations, Catena said, when the office was required to immediately jump into an investigation upon receiving a complaint.

Of little impact has been the new rule that sparked so many of the lawsuits: the inclusion of gender identity as a protected category under Title IX. Those students were already protected at UNM, she said.

“UNM and New Mexico have always protected our queer community and will continue to do so. We have state laws and the institution will always, even if federally it is pulled back, we will have institutional policies that will continue to protect” the LGBTQ+ community, she said.

According to the Movement Advancement Project, a think tank that tracks pro- and anti-LGBTQ legislation, 20 states and the District of Columbia prohibit discrimination in schools based on gender identity or sexual orientation.

Catena said that unless her state is hit by an injunction, she anticipates the rollout of the new policies will be “smooth sailing” over the coming academic year. But she is worried about how the battle over Title IX will play out across the country—even in future regulatory eras.

“The people that we’re supposed to be serving keep getting lost in the fight. I’m grateful I have a clear path forward that hasn’t changed in terms of who or what we protect,” she said, “but I’m also really sad that that path might also change again when the regs change again.”