Department of Education Releases Proposed Changes to Title IX Regulations

June 24, 2022

By Sandra M. Casey, Seth F. Gilbertson, Laura H. Harshbarger, and Philip J. Zaccheo

Announcing it as a commemoration of the 50th Anniversary of the enactment of Title IX (though anticipated for the past 18 months), the U.S. Department of Education (DOE) announced sweeping proposed amendments to the Title IX regulatory scheme that went into effect less than two years ago.

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Implications for Colleges and Universities of Expanded Legal Protections for LGBTQ+ Students, Faculty and Staff

October 25, 2021

By Barbara A. Lee, Ph.D. and Megan L. Anderson, Lathrop GPM

In its Bostock v. Clayton County, Georgia ruling in June 2020, the U.S. Supreme Court ruled that the prohibition on “sex” discrimination under Title VII of the Civil Rights Act of 1964 encompasses discrimination on the basis of sexual orientation and/or gender identity. The Bostock ruling raised, but did not decide, the question of whether or not other federal sex discrimination laws, such as Title IX of the Education Amendments of 1972 and the Fair Housing Act, might also inherently prohibit LGBTQ+ discrimination. While the Bostock ruling applies only to Title VII claims, the Biden administration has announced that federal agencies will apply Bostock’s definition of “sex” to other federal civil rights laws. On the day he was inaugurated, Jan. 20, 2021, President Biden issued an executive order stating that federal sex discrimination laws besides Title VII – including Title IX and the Fair Housing Act – should be interpreted as prohibiting gender identity and sexual orientation discrimination. Subsequently, in June 2021, the U.S. Department of Education (ED) issued guidance that Title IX prohibits LGBTQ+ discrimination. In addition, in February 2021, the U.S. Department of Housing and Urban Development (HUD) announced that it would enforce the sex discrimination provisions of the Fair Housing Act as encompassing LGBTQ+ discrimination.

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U.S. Department of Education Reaffirms the Importance of Diversity Efforts Post- Schuette

May 6, 2014

By John Gaal

Iuniversity-building5n April, the Supreme Court issued its decision in Schuette v. Coalition to Defend Affirmative Action, upholding Michigan’s State Constitutional Amendment prohibiting, among other things, any preferential treatment on the basis of race in the admissions process at Michigan’s public colleges and universities. Yesterday, the Department of Education responded to that decision by “confirming” that Schuette leaves intact the Supreme Court’s prior decisions recognizing that institutions may use all legally permissible methods to achieve diversity goals, noting that

[t]hese include, absent any restrictions in state law, appropriately tailored programs that consider the race of individual applicants as one of several factors in an individualized process to achieve the educational benefits that flow form a diverse student body.

This “Dear Colleague” letter also reaffirmed the continuing impact of the Department’s previously issued “Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education” and its “Questions and Answers about Fisher v. University of Texas at Austin.”  While clearly the Department is correct that, as a legal matter, the Court’s most recent decision does nothing to directly alter the legal landscape for private institutions when it comes to promoting diversity (if for no other reason than Schuette did not present that question to the Court), it begs the question whether this decision nonetheless brings the Court just one step closer to a significant change if the question does present itself for review again.