Title IX Rulemaking and the Administrative State

The lengthy Title IX regulations issued by the US Department of Education in April 2024 provide an instructive example of the “administrative state” in action. Based on that 1972 law’s brief prohibition of sex discrimination in educational institutions that receive federal funding, the new rules are nearly 15,000 words, establishing legally binding mandates on sexual harassment, accommodations for pregnant and lactating students, and treatment of transgender students. The Biden administration’s rules reversed many provisions of the 2020 regulations issued by the Trump administration, which in turn had overturned policies announced by the Obama administration—indicating the key role the White House and presidential appointees play in the regulatory process. Soon after the rules were announced, federal courts enjoined their enforcement in half the country—indicating the role the judiciary has long played in developing Title IX rules. Meanwhile, schools throughout the country, from kindergarten to graduate programs, are left uncertain about what they must do to comply with federal law. To move beyond overheated rhetoric to “deconstruct the administrative state,” we must take a closer look at the diverse factors that influence policymaking in particular agencies.