Episode 72: The Initial Days under the Trump Administration: Presidential Directives, Agency Policies, and Legal Challenges with Steven Richard

Courtney Bullard, host of the Law and Education podcast, discusses Title IX compliance and its evolving legal landscape with trial attorney Steven Richard. They explore the implications of executive orders, particularly those affecting DEI initiatives and the definition of sex under Title IX, emphasizing the need for institutions to tailor their responses based on unique community needs and legal obligations. The conversation highlights the importance of understanding Dear Colleague letters from the Department of Education, the potential for private litigation, and the necessity of clear communication within educational communities to navigate these complex changes effectively.

• The podcast focuses on Title IX compliance, exploring its implications and practical applications within educational institutions.
• Discussions involve campus and school leaders, experts, and colleagues to provide insights into navigating Title IX and related areas.
• The conversation aims to help professionals understand the legal and practical aspects shaping careers in educational communities.

"Welcome to the Law and Education delivering insight into Title IX compliance and its practical application. I'm your host, Courtney Bullard, Founder and CEO of Institutional Compliance Solutions."

• The podcast is hosted by Courtney Bullard, who is dedicated to delivering insights into Title IX compliance through discussions with various experts.

• Steven Richard is introduced as a trial and appellate attorney with extensive experience in business litigation, higher education law, and governmental law.
• He is recognized for his expertise in electronic discovery and risk management issues and frequently collaborates with educational institutions in legal matters.

"In this episode I am joined by Steven Richard. Stephen is a trial and appellate attorney admitted in federal and state courts in Rhode Island, Connecticut and Massachusetts."

• Steven Richard's legal expertise spans multiple states, making him a valuable resource for understanding legal complexities in education.

• The discussion highlights the dynamic and challenging environment of Title IX compliance and litigation.
• Recent developments include executive orders and judicial activity affecting Title IX interpretations, especially regarding the definition of sex.
• Educational institutions face uncertainties due to evolving interpretations and potential legal challenges.

"A lot has happened since we last met and a lot will go forward that will bring new challenges as well as uncertainties."

• The landscape of Title IX compliance is rapidly changing, bringing new challenges and uncertainties for educational institutions.

• Executive orders are issued by the President to direct how laws are interpreted and enforced by the executive branch.
• Recent executive orders focus on DEI initiatives and the definition of sex under Title IX, impacting college athletics and other areas.
• The scope and legality of these orders are often debated, and they can lead to judicial challenges.

"An executive order comes from the President as part of the executive administration of our laws that are passed by Congress."

• Executive orders are presidential directives that influence the interpretation and enforcement of laws, particularly impacting Title IX and related areas.

• The Department of Education is tasked with studying and reporting on interpretations of Title IX and DEI initiatives.
• Guidance documents from the Department provide further clarity on how laws will be administered within the executive branch.
• These developments are monitored closely by educational institutions to ensure compliance.

"The Department of Education has been entrusted to report back within 90 or so days regarding interpretations of sex under Title IX or DEI initiatives."

• The Department of Education plays a crucial role in shaping the administration of Title IX through studies and guidance documents.

• Legal challenges to executive orders and guidance documents are common, with courts evaluating their legality.
• Institutions must navigate these legal complexities while ensuring compliance with evolving regulations.
• The conversation emphasizes the importance of staying informed and adaptable in the face of ongoing changes.

"The battle now has ensued in the courts where courts are looking at the legality of these executive orders."

• Legal challenges to executive orders highlight the ongoing complexities and uncertainties faced by educational institutions in Title IX compliance.

• The ongoing issuance of executive orders by the president is creating a complex legal landscape for colleges and universities, with courts frequently intervening to either halt or partially allow these orders.
• Institutions are grappling with how to comply with these executive orders amidst varying interpretations and enforcement by the executive and judicial branches.
• Different universities and states are responding in diverse ways to these executive orders, with some eliminating programs, others maintaining them, and many falling somewhere in between.
• Legal advice for institutions is highly individualized, requiring a deep understanding of each institution's unique culture, community, and legal obligations.

"One size does not fit all here. And I have multiple clients with unique campuses, differing communities, differing perspectives, differing underlying philosophies that pervade the communities."

• This quote emphasizes the need for tailored approaches to compliance, recognizing the diversity of institutional contexts and the importance of individualized assessments.

• Institutions are advised to conduct a holistic examination of their culture, community, and policies to determine the best course of action in response to executive orders.
• It is crucial to identify key stakeholders and form strategic teams to manage compliance efforts effectively, ensuring clear communication and controlled responses.
• The chaotic implementation of policies can be avoided by having a centralized flow of information and a strategic, incremental approach to compliance.

"The less controlled the response will be, the more chaotic the implementation will be. And so it's really important first to identify the key stakeholders."

• This quote highlights the importance of controlled and strategic implementation to prevent chaos and ensure effective compliance with executive orders.

• Dear Colleague letters serve as guidance documents from the Department of Education's Office for Civil Rights, outlining the department's expectations for compliance.
• While not legally binding like regulations, these letters indicate the department's enforcement intentions and require serious consideration by institutions.
• The letters are particularly important as they remain unaffected by judicial actions against executive orders and provide a framework for compliance during investigations.

"A Dear Colleague letter is a pronouncement of interpretation and a setting of a course that the administrative agency intends to take."

• This quote explains the role of Dear Colleague letters as guidance on the department's enforcement approach, necessitating attention from institutions to align their policies accordingly.

• Title IX regulations remain in effect, specifying how institutions must respond to sexual harassment, despite discussions about the potential dismantling of the Department of Education.
• Recent Dear Colleague letters and investigations focus on issues such as transgender participation in athletics and the use of shared facilities.
• The involvement of multiple agencies in enforcement efforts indicates an expanding scope of oversight beyond the Department of Education and the Department of Justice.

"We typically see enforcement of Title IX coming out of the Department of Education Office for Civil Rights or the Department of Justice. But we're seeing other agencies now come forward and investigate specifically."

• This quote points to the increasing complexity of enforcement, with multiple agencies participating in investigations related to Title IX issues, reflecting broader governmental interest and intervention.

• Multiple federal departments are now conducting investigations in higher education, beyond the traditional Department of Education and Office for Civil Rights.
• Agencies like NASA and USDA are involved due to their roles as funding sources, complying with executive orders and regulations.
• There is an increased likelihood of private complaints being filed with departments, facilitated by tools like whistleblower websites.
• The use of AI to identify potential violations by scanning college and university websites is becoming more common.

"Traditionally, we've all proceeded on the assumption that we focus on the Department of Education and Office for Civil Rights. But the reality is that there are dozens of federal departments that have roles in federal funding that impact colleges and universities."

• The traditional focus on the Department of Education is shifting as multiple federal departments take on roles in investigations due to their funding involvement.

"I am seeing increasingly clients facing privately commenced complaints with OCR by third parties or advocacy groups."

• There is a growing trend of private complaints initiated by third parties or advocacy groups, increasing the scrutiny on educational institutions.

• Institutions are advised to remain calm and avoid impulsive actions in response to investigations, focusing instead on identifying high-risk areas.
• The need for continuous evaluation, assessment, and risk management is emphasized to navigate legal obligations and community values.
• Institutions may face conflicts between legal obligations and core values, requiring decisions on risk aversion and standing ground.

"It's important for counselors and advisors like us and internal senior administrators as well as general counsel to be that calm voice to bring some perspective."

• Counselors and advisors play a crucial role in providing calm and perspective amidst the chaos of compliance challenges.

"Identify the areas in gray where you need further evaluation, assessment and risk management to understand what the risk may be and what the solutions could be."

• Institutions should focus on evaluating and managing areas of uncertainty to understand risks and potential solutions.

• Title VI, a federal law, remains in effect alongside executive orders and discussions on diversity, equity, and inclusion (DEI).
• Recent documents, including a Dear Colleague letter and FAQ, provide further clarification on OCR's interpretation of Title VI requirements.
• OCR aims to expand the scope of race-neutral evaluations beyond admissions to all aspects of programs and activities.

"Title VI in the Equal Protection Clause, essentially as stated by OCR, require race neutral implementation and determinations."

• OCR's stance requires race-neutral implementation across programs, extending beyond admissions to other activities.

"We will look closely at opportunities and activities on campus that seem to be perhaps more exclusive, seem to be more isolated and perhaps not as accessible as others."

• OCR will scrutinize campus activities that appear exclusive or isolated, assessing their alignment with race-neutral policies.

• Numerous litigation challenges are arising against executive orders, particularly concerning funding and expenditure caps.
• The courts are expected to be overwhelmed with litigation challenges related to executive orders for an extended period.
• Tracking and understanding these litigation challenges are crucial for institutions to navigate the evolving legal landscape.

"We've seen several challenges to executive orders, some of which deal with the issues of funding, whether funding will go forward, whether there'll be caps, for example, on Research and indirect costs."

• Litigation challenges are focusing on executive orders related to funding and expenditure limitations, impacting research and indirect costs.

• Federal court cases are at the initial level and can escalate to higher courts, including the Supreme Court, affecting federal funding and DEI (Diversity, Equity, Inclusion) policies.
• Judicial challenges to DEI prohibitions or pullbacks are ongoing, with significant cases like the Maryland case issuing a national injunction.
• The courts will determine the extent of the presidential administration's power in defining these issues, focusing on separation of powers and supremacy between federal and state requirements.
• Private litigation remains a risk for educational institutions, with parties able to sue under Title IX, Title VI, and state civil rights laws.
• Schools must navigate changing regulations and potential litigation by implementing correct procedures and maintaining clear communication with stakeholders.

"We're only at the initial level in the federal courts, where these cases typically must arise first, and then from there they go to an intermediate appellate level and perhaps to the Supreme Court."

• This quote highlights the progression of legal cases through the court system, indicating the potential for escalation to higher courts.

"As the law continually changes, schools can find themselves confused or entrapped as to what applies and when. And missteps become litigious nightmares because private parties involved in proceedings."

• The quote underscores the complexity and risks schools face due to evolving legal standards and the potential for private lawsuits.

• Establishing a relationship with general counsel is crucial for navigating the legal landscape and making informed business decisions.
• Institutions must adhere to their policies and procedures to mitigate risks and ensure compliance with legal standards.
• Effective communication within the community is vital, reassuring stakeholders and maintaining transparency about institutional values and policies.
• Regular updates and clear messaging help manage community concerns and guide them through legal and procedural changes.

"Messaging to your community is vitally important in this process. Whether you're the superintendent of a school district, a principal at a K through 12 school, a president or senior administrator at a college university, it's important for the community to reinforce its values, where it stands and where it will be going."

• This quote emphasizes the need for clear and consistent communication to reinforce community values and provide reassurance amid legal uncertainties.

"Doing the right thing and working off your policies and procedures, the right policy and procedure at the right time, you know, is the best you usually can do."

• The quote highlights the importance of adhering to established policies and procedures to navigate legal challenges effectively.

• Schools and universities must conduct strategic, careful, and holistic examinations of their policies to manage risks effectively.
• Implementing the right procedures at the right time is crucial for avoiding litigation and ensuring compliance with rapidly changing regulations.
• Collaboration with legal experts and continuous review of policies help institutions adapt to new legal challenges and maintain compliance.

"Strategic, careful and holistic examinations and careful and properly implemented implementation are so vital in risk management."

• This quote underscores the necessity of a comprehensive approach to policy examination and implementation to manage legal risks.

"We're constantly messaging to our clients...to establish one, because they're the experts on how to navigate the legal landscape and give you advice so that you can make the best business decisions on the ground in that risk analysis."

• The quote stresses the importance of expert legal advice in navigating complex legal landscapes and making informed decisions.

• Administrators play a critical role in leading and guiding their communities through legal challenges by communicating values and policies effectively.
• Legal experts provide essential support and guidance in understanding and complying with executive orders, litigation challenges, and regulatory changes.
• Collaboration between administrators and legal experts is essential for managing risks and ensuring institutional compliance.

"Our communities depend upon us to guide and lead them. And this is particularly an important role for administrators."

• This quote highlights the responsibility of administrators to guide their communities through legal and procedural changes.

"We always say that we don't like to work off of scare tactics, but there's so much potential at this point either for an investigation or a lawsuit."

• The quote reflects the need for proactive risk management and the importance of not relying on scare tactics but rather on informed decision-making.