“You have to pass it to see what’s in it” seemed to be a silent coda at Monday night’s school board meeting, during which the board’s attorney outlined for the public what the new Title IX policy means for ABSS – two weeks after the board adopted it, with no public input and little discussion beyond the potential loss of federal funding for noncompliance.
Meanwhile, nine, out of a total of 17, speakers who addressed school board members during their public comments period Monday night expressed concerns – a majority said they support the new policy – about the new Title IX regulations (see related story, this edition).
The policy that school board members voted 6-1 to adopt at a work session on August 13 provides new protections against discrimination and harassment based on gender identity and sexual orientation, as well as “pregnancy or related conditions.”
School board members also broke Monday night from their longstanding practice of hearing public comments near the beginning of their nightly business meetings, instead allowing their attorney to discuss the Title IX policy prior to the regularly-scheduled public comment period.
While school board member Ryan Bowden had introduced a motion Monday night to amend the agenda – and hear public comments period before the “Title IX Information” presentation by the attorney – his motion failed for lack of a second. Bowden had been the lone vote against adopting the regulations when the board approved them on August 13.
School board chairman Sandy Ellington-Graves told The Alamance News last week that the board had no plans to reconsider or rescind its new Title IX policy, after the U.S. Supreme Court ruled August 16 that multiple injunctions blocking the new regulations could remain in place. “The Supreme Court’s decision does not change the fact that the Office of Civil Rights will enforce the new legislation and the investigation of a complaint filed in ABSS [if one were to be filed],” she said last week.
During his discussion Monday night, attorney Adam Mitchell of the Tharrington Smith law firm stressed that, while litigation over the new Title IX regulations is far from settled, the reason that other states have sued the federal government is because they have state laws that he said are in direct conflict with the new federal regulations.
“That’s what’s driving the litigation in these other places,” Mitchell said. “The Supreme Court ruling actually came from the Kentucky and Louisiana cases,” he said. The Supreme Court on August 16 denied the federal government’s emergency applications to proceed with implementing portions of the new regulations – reportedly hundreds of pages’ worth – that aren’t subject to lawsuits.
The new Title IX regulations are currently blocked from taking effect in: Alabama; Alaska; Arkansas; Florida; Georgia; Idaho; Indiana; Iowa; Kansas; Kentucky; Louisiana; Mississippi; Missouri; Montana; Nebraska; North Dakota; Ohio; Oklahoma; South Carolina; South Dakota; Tennessee; Texas; Utah; Virginia; West Virginia; and Wyoming. Also exempt are hundreds of K-12 schools, colleges, and universities – including three in Alamance County, Burlington Christian Academy, Alamance Community College, and Elon University – because they have current or former students who are members of several groups of plaintiffs that have sued the U.S. Department of Education over the new Title IX regulations.
“Importantly, all Members of the Court today accept that the plaintiffs were entitled to preliminary injunctive relief as to the three provisions of the rule, including the central provision that newly defines sex discrimination to include discrimination on the basis of sexual orientation and gender identity,” the Supreme Court stated in the unsigned ruling issued August 16.
As Mitchell described it Monday night, the school board had no choice but to approve the new Title IX policy at the work session on August 13 in order to have it in place by the first day of school, which was Monday – or else risk a Title IX complaint being filed and being stripped of the approximately $50 million in annual federal funding that ABSS receives.
Certain bullying/harassment complaints now automatically deemed Title IX violations
“In reading the policy, it does add in some more groups under this protection – where we had them already in our bullying and harassment [policy],” school board member Seneca Rogers pointed out Monday night.
The U.S. Department of Education’s Final Rule, issued in April 2024, states, “Many women see their education derailed because of pregnancy discrimination. And many LGBTQI+ students face bullying and harassment just because of who they are.
“The final regulations,” the rule states, “also provide greater clarity regarding: the definition of sex-based harassment; the scope of sex discrimination, including schools’ obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; and schools’ obligations to provide an educational environment free from discrimination on the basis of sex.”
“That’s correct,” Mitchell replied to Rogers. Except now, he said, “certain types” of complaints of bullying and harassment would now be automatically classified as Title IX violations.
The school board’s attorney also listed “three things these regulations do not change.”
Mitchell said that the new Title IX regulations have no effect on an existing requirement to allow transgender students to use school bathrooms corresponding with their preferred gender identity; do not overturn North Carolina’s Fairness in Women’s Sports Act; and do not conflict with the Parents’ Bill of Rights passed by the General Assembly last year.
“I don’t want to say it doesn’t change anything, but as to those three topics, it does not change anything,” Mitchell said. The new regulations do not require schools to teach about gender identity, he said.
Mitchell said Monday night that ABSS officials had contacted senator Amy Galey, who represents Alamance County in the General Assembly and sponsored the Parents’ Bill of Rights. According to the school board’s attorney, the policy research division within the General Assembly subsequently confirmed for Galey (who attended the school board meeting Monday night but didn’t address the board) that the new Title IX regulations don’t conflict with the Parents’ Bill of Rights.
Meanwhile, least one LGBTQ advocacy group, the Asheville-based Campaign for Southern Equality, has filed a federal complaint, alleging that the Parents’ Bill of Rights discriminates against LGBTQ students, staff, and families and creates a hostile educational environment, according to the 113-page complaint filed in January 2024 with the Office of Civil Rights for the federal education department and the civil rights division for the U.S. Department of Justice.
The complaint alleges that North Carolina school systems are “barring LGBTQ-affirming content, outing transgender students, erecting barriers to LGBTQ students receiving needed health care at school as well as support from educators, and prohibiting transgender girls from playing athletics consistent with their gender identity.”
Neither Mitchell, nor other ABSS officials, including school board members, mentioned that complaint, or any other potential litigation that may have been filed over the Parents’ Bill of Rights.
‘Large number’ of N.C public school systems have adopted new Title IX policy
“A large number have adopted the model policy” that ABSS adopted two weeks ago, Mitchell said in response to a question from Bowden about whether all North Carolina public school systems have adopted the new Title IX policy.
All public school systems (not subject to injunctions) had been given an August 1 deadline to implement policies that comply with the new regulations, according to the federal education department.
“One of the things that concerns me is,” Bowden said, “after doing a lot of research the last couple weeks, the school boards association [which drafts policies for ABSS and other N.C. school systems] adopted this the first of July, but the regulations dropped from the federal agency in April… We missed a boat on the opportunity to involve the public more than we did.”
Mitchell touched on a possible reason for the delay in presenting the new policy, telling the board his firm works with the N.C. School Boards Association to draft policies. New and revised policies are recommended in tandem with the passage of new state and federal laws, as well as significant court rulings, he said.
“We decided we would wait and monitor that and make a determination about which way to go,” Mitchell elaborated, apparently referring to the litigation filed over the new Title IX regulations by attorneys general in 26 states.
The new title IX policy that was presented at the August 13 work session and approved on a “first reading” by a 6-1 margin, with Bowden against, was aimed at getting the new regulations place by the beginning of the school year, which was Monday, the attorney elaborated.
During the earlier conversation – which the attorney joined by phone and centered largely on the potential loss of federal funding for noncompliance – there had been no mention of the need to implement the new Title IX regulations by the beginning of the school year. The policy had been listed as an informational item on the work session agenda, which was later amended to make it a voting item and to waive a second reading.
Though his presentation preceded the public comment period, Mitchell apparently sought to allay unspecified concerns over bathroom access for transgender students, which he’d said at the outset of his discussion that the new Title IX regulations don’t change.
“Since the Grimm case was decided in 2020, there have been zero cases in ABSS where biological males have asked to use the girls’ bathroom and zero cases where biological girls have asked to use the boys’ bathroom,” the attorney said. “In other states where the litigation is pending, there’s a direct conflict with state law. We do not have that in North Carolina.”
“Let’s just say this board says, ‘I don’t care what Title IX says, we’re going to be rebels, we’re going to ignore it,’” school board member Chuck Marsh said Monday night. “Is there a chance we lose all of our federal funding?”
“Yes,” Mitchell told the board. “There’s also the litigation context…Title IX is a cause of action. They can go right to federal court and file a lawsuit.” Citing the Grimm case, Mitchell said that the Gloucester County school board in Virginia had been ordered to pay $1.3 million in damages.
In Grimm, the Fourth Circuit Court of Appeals ruled in favor of the plaintiff, a transgender student and biological female who was banned from using the boys’ bathroom at school and later sued under Title IX and the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. The Supreme Court in 2021 declined to hear the case.
That decision is binding in North Carolina, Ellington-Graves told the newspaper last week, which is part of the Fourth Circuit Court of Appeals jurisdiction.
