Whether you love, hate, or are indifferent to President Joseph Robinette Biden Jr. and his administration, we can all agree on one thing: the president has been a busy man since taking office. On his first day in office alone, President Biden signed 17 executive orders, memorandums, and proclamations. Not surprisingly, many of these actions were taken to directly, intentionally, and immediately reverse many of former President Donald Trump’s policies. Let’s take a look at some of our 46th president’s actions and what they might mean for schools.
Gender Identity and Sexual Orientation
In Bostock v. Clayton County, 590 U.S. ___ (2020), the United States Supreme Court held that Title VII’s prohibition on discrimination “because of . . . sex” covers discrimination on the basis of gender identity and sexual orientation. On January 20, 2021, President Biden issued an executive order requiring all federal agencies to comply with Bostock. While Bostock was a Title VII employment case and the SCOTUS made clear in its opinion that it was offering no opinion on sex-segregated bathrooms and locker rooms under Title IX, the Biden administration made its position clear in the executive order:
Under Bostock’s reasoning, laws that prohibit sex discrimination — including Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681 et seq.) . . . — prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.
This position is directly contrary to the one espoused by the Trump administration. In fact, President Trump’s Department of Education released a guidance document saying the opposite of Biden’s EO the week before President Trump left office. Don’t be surprised if there is a push for regulatory or other change in the near future that would require schools to ensure that there is no discrimination on the basis of gender identity or sexual orientation in the performance of contracts or activities that are funded in whole or in part by federal funds. There may also be major changes in the federal government’s approach to this issue, possibly including guidance or regulations that will require schools to allow students to use bathrooms and locker rooms consistent with their gender identity.
Race and Sex Stereotyping
On September 22, 2020, then-President Trump issued an Executive Order on Combating Race and Sex Stereotyping that prohibited government contractors and some federal grant recipients from using any workplace training “that inculcates in its employees any form of race or sex-stereotyping or any form of race or sex scapegoating.” On his first day in office President Biden issued his own executive order that rescinded Trump’s executive order. Generally, Biden’s executive order requires federal “executive departments and agencies [to] recognize and work to redress inequities in their policies and programs that serve as barriers to equal opportunity.” The executive order also requires federal agencies to review and provide a report within 200 days reflecting findings on “[t]he operational status and level of institutional resources available to offices or divisions within the agency that are responsible for advancing civil rights or whose mandates specifically include serving underrepresented or disadvantaged communities.” This almost certainly will include the U.S. Department of Education reviewing its policies and activities related to equal opportunity and civil rights to see if they “create or exacerbate barriers to full and equal participation by all eligible individuals.” In other words, don’t be surprised if there are more and more invasive investigations and reviews from the Office for Civil Rights in response to complaints. There may also be a renewed focus on disparities in student discipline based on race and equitable access to education, school resources, and school funding.
Mask Mandate
President Biden approved yet another executive order on January 20, 2021 requiring all “on-duty or on-site Federal employees, on-site Federal contractors, and other individuals in Federal buildings and on Federal lands [to] wear masks, maintain physical distance, and adhere to other public health measures, as provided in CDC guidelines.” The executive order also directed HHS and the CDC to work with local (i.e. school district) officials “regarding mask-wearing and other public health measures, with the goal of maximizing public compliance with, and addressing any obstacles to, mask-wearing and other public health best practices identified by CDC.”
Although this is not a directive that applies directly to public schools, we expect forthcoming CDC guidance on school operations to include stronger wording about masking.
Regulatory Freeze
On January 20, 2021, President Biden’s Chief of Staff issued a memorandum to the heads of all executive departments and agencies to place any pending regulations on hold until a department or agency head appointed or designated by the President after noon on January 20, 2021, reviews and approves the rule. This won’t have any impact on the new Title IX regulations (that Biden and his administration strongly oppose) because they have already gone into effect. However, it will put on hold any other school regulations in the pipeline that would have impacted things such as special education and others.
NLRB
President Biden fired the Trump-appointed general counsel for the National Labor Relations Board after he refused to resign ten months before the expiration of his term. The general counsel had a reputation for supporting pro-employer stances. President Biden also appointed the NLRB’s sole Democrat to serve as the board’s chair. He will fill a current vacancy with a Democrat, but the Republicans will hold a 3-2 edge on the board until at least December 16, 2022. Nebraska schools are governed by the Commission of Industrial Relations in labor matters, so any NLRB moves will not have a direct impact on you. However, the CIR does look to NLRB decisions on occasion, such as when it encounters an issue it has not considered previously. This means that a more employee-friendly NLRB could have some impact on Nebraska schools.
More Executive Actions to Come
On January 22, 2021, the Biden administration issued a Fact Sheet indicating that more executive action is on the way. These efforts include:
Asking the U.S. Department of Agriculture to consider expanding and extending federal nutrition assistance programs.
Restoring collective bargaining power and worker protections by revoking Trump Executive Orders and directing federal agencies to bargain over permissible, non-mandatory subjects of bargaining when contracts are up for negotiation so that workers have a greater voice in their working conditions.
Develop recommendations to pay more federal employees and contractors at least $15 per hour and provide emergency paid leave to workers.
While some of these efforts may not immediately or directly affect school districts, they may gain momentum and influence state legislators to attempt to follow suit.
COVID-19 Toolkit
The CDC has issued a COVID-19 Vaccine Communication Toolkit for Essential Workers, including people working in education. The purpose of the toolkit is to “educate employees about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns.” The toolkit includes an introductory letter, key messages, FAQs (including one specifically for employers), a slide deck, fact sheets, a newsletter, a letter to your employees, posters and flyers, and social media messages and toolkit. The CDC intends to add more materials to the toolkit and encourages you to check back frequently for updates.
If you have any questions about any of these topics or any future actions by the Biden Administration, please don’t hesitate to reach out to us at ksb@ksbschoollaw.com or (402) 804-8000.