A 'catastrophic' loss

Sep. 17—State education officials are attempting to navigate Alabama's Act 2022-290 (previously referred to as HB-322, also known as the "bathroom bill) while also adhering to the Biden administration's proposed interpretation to Title IX's non-discrimination policy.

Alabama education representatives say Act 2022-290 stands in opposition to federal guidelines and could potentially lead to a "catastrophic" loss of funding for local school systems. Cullman City Schools (CCS) could lose nearly twenty percent of its annual budget if found in violation of Title IX by following the state law that, among other things, mandates students be required to use bathrooms based strictly on their biological sex. In the Cullman County Schools system (CCBOE), 16.16 teachers and 88 non-certified support staff are funded with federal money.

In March 2021, the United States Department of Education began a comprehensive review process of Title IX under President Joe Biden's Executive Order 14021 — Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity. Throughout this process, the department sought public input and held a nationwide virtual public hearing in June of last year, convened by the Office for Civil Rights. A year later, on June 23 — the 50th anniversary of Title IX — the USDOE issued its proposed changes based on its investigation and the public's input.

With the recognition that Title IX has received for the opportunities it allowed in regards to women's athletics, it is often overlooked that at its core, Title IX is a blanket sexual non-discrimination policy for all schools that receive federal funding.

According to the USDOE, proposed changes are not to be applied to athletics, and it plans to issue a separate interpretation as to how Title IX should be applied to that area in the future. Falling under the executive branch of government, each administration is capable of instating its own lawful interpretation of Title IX — both the Trump and Obama administrations provided its own guidance for how these regulations should be interpreted and implemented.

With the 60-day window allowing for public comment to these proposed changes coming to a close last week, officials with the Alabama State Department of Education are planning on how best to adhere to the new guidelines under Alabama law. Speaking to The Times, Director of Federal Programs for the ALSDE Molly Killingsworth described how this proposed interpretation differs from previous administration's.

"They felt like the previous administration had regulations in place that didn't give survivors of sexual assault a voice, or weakened the protection — I guess — for survivors of sexual assault. And then also the stance that every child deserves an education that's free from discrimination. They felt like the previous administration felt like every child deserves an education free from discrimination unless you're LGBTQ+. And so, through this, through all these proposed amendments, they see that they're righting the ship — in their words — and strengthening the protections for those groups and then also the survivors of sexual assault."

The decision to include protections from discrimination for LGBTQ+ students and faculty stems from the 2020 Supreme Court ruling of Bostock v. Clayton County that ruled in favor of the plaintiff, Gerald Bostock who said that he was unlawfully terminated from his job after expressing interest in a gay softball league.

Justice Neil Gorsuch delivered the opinion of the court "... it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex ... take an employer who fires a transgender person who was identified as a male at birth, but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee's sex plays an unmistakable and impermissible role in the discharge decision."

In an emailed response to The Times, Alabama Attorney General Steve Marshall said that this interpretation undermines women's rights and increases their risk of assault within spaces designated for women.

" ... the Biden administration's efforts to force schools to redefine 'sex' as 'gender identity' will undermine 50 years of gains in women's rights in public education. It will deny them equal access to education programs and activities designated for women alone. As a result, women will lose opportunities and scholarships, not to mention be subjected to a greater risk for physical assault from potential predators," Marshall said.

While there is no mention within the proposed changes to redefine biologically based terms referring to an individual's sex, rather by citing the precedent set in Boystock v Clayton County the USDOE proposes that the interpretation of Title IX's language — referring to discrimination based on sex, and the protections that it provides — be extended to include an individual's sexual orientation and/or gender identity. In an emailed response to The Times, General Counsel and Director of Legal Advocacy for the Alabama Association of School Boards Jayne Williams said that this interpretation is poised to stand in contradiction to the Alabama law that requires students to use the restroom of their biological sex and prohibits the discussion of sexual orientation or gender identity.

"The proposed regulations to Title IX would specifically prohibit sex discrimination which would include discrimination based on gender identity. Act 2022-290's requirement that students use bathrooms based strictly on their biological sex would likely be a direct conflict to the proposed regulations for a transgender student who does not wish to use the bathroom of their biological sex."

But according to Killingsworth, bathrooms are not the only cause of contradiction between the two pieces of legislation. She explained that the portions of the law which prohibit any types of discussion of sexual orientation or gender identity between faculty and students in grades K-5, could also be cause for concern.

"To me, that may be a bit of a bigger issue than what restroom you're going to because that's, 'I'm not even, I'm not acknowledging that you are someone or you think you're someone other than what you look like to me,'" Killingsworth said.

In May, Alabama Attorney General Steve Marshall received guidance from the United States Department of Agriculture informing him that Alabama schools were at risk of losing its federal funding, including SNAP funding, that provides free and reduced lunches. A lawsuit against the USDA and the Biden administration was filed by Marshall — along with 21 other attorneys general — and is currently awaiting hearing before the Federal Middle District Court of Tennessee.

In the Cullman County Schools system, 67.2 percent of the students benefit from free or reduced lunches.

Killingsworth said that she is unaware of any attempts made by Marshall to notify anyone within the ALSDE regarding the USDA's notification of the potential loss of funding. She added that Title IX complaints are typically resolved without stripping a school system of its federal funding, but she is also unaware of a situation where a school would be found in violation of Title IX by adhering to a state-mandated law.

"The ones I'm familiar with — with Title IX — it's been a situation where we're able to discuss with the district what the complaints are. What we find, what we see, and if there's legitimacy to it. Let's work with you to help resolve it."

However, Williams said that the loss of federal funding was not the only potential risk for local school systems. She said that this interpretation opens the door for potential civil lawsuits to be filed against schools.

"Loss of federal funds could be catastrophic for school systems that rely on them for funding important staff positions, school programs, meals, supplies, etc. ... In addition to the potential loss of federal funding by the USDOE, individual students who believe their rights were violated could sue local boards for money damages in federal court," Williams said.

According to the city school's FY 2023 budget, the district received $9,043,756 in federal funding making up 18.43 percent of the annual operating budget. During the recent budget proposal meeting, CCS Chief Financial Officer James Brumley added that salaries of 17.73 teachers were supplied with federal funding.

"If we lost federal dollars we would lose 17.73 teachers, or we would need to make that up with local funds," Brumley said.

In addition to teachers, 5.25 librarians, .5 counselors, 1.6 administrators and 52.58 non-certified support personnel have their salaries provided through federal funding according to the 2023 CCS budget presentation.

The CCBOE received $5,605,359 in federal funding for 2023, which supplies the salaries of 16.16 teachers and 88 non-certified support staff.

In addition to this, if the USDOE found that adherence to Act 2022-90 resulted in statewide non-compliance with Title IX, a portion of state supplied funding also has the potential to be withheld.

"Over the past couple of years we've received a significant amount of federal funds. Some stay at the state level to provide statewide activities for the LEA's (Local Education Authority) for the schools, and then the majority of it goes directly to the schools. We eventually could be at risk of the Feds withholding the funds or taking back the funds, or paying back the funds. That's for any funding, any federal funding sources," Killingsworth said.

According to CCS, $22,824,367 in state provided funding makes up 46.52 percent of the FY 2023 budget, and supplies the salaries of 184.69 teachers, 6.5 librarians, 4.5 counselors, and 9.75 administrators.

For the CCBOE, 541.62 teachers, 23.5 librarians, 23 counselors, 37 administrators, and 168.56 non-certified support staff have their salaries supplied from state funding. Williams said that she was unaware of any efforts being made by the state to offset these funds in the event of its loss.

The USDOE is currently reviewing more than 100,000 public comments received since releasing the proposed changes before releasing a final interpretation. Marshall said that he and the Alabama Legislature are preparing to stand in opposition.

"The Alabama Legislature has already taken strong steps to protect our female students from genderless sports and bathrooms. I am in consultation with State lawmakers to assist as they draft the strongest most effective legislation to protect Alabama students," Marshall said.

As to how the ASDOE will navigate these new regulations, Killingsworth said, "I have no idea, because there are some clear contradictions that you ... I mean you just can't. So, I'm assuming at some point the State of Alabama will, I'm not sure what, but at some point something's gonna have to happen."