Biden Administration Acts Swiftly – Signaling Change to Issues Impacting Schools

On January 20, 2021, President Joseph R. Biden, Jr., issued an Executive Order, titled, “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” Signaling a dramatic change from prior federal guidance pertaining to transgender issues, the order states, in part, that,

“Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports… It is the policy of my Administration to prevent and combat discrimination on the basis of gender identity or sexual orientation.”

In terms of federal policy, this constitutes something of an about-face from the position of the administration of former President Donald Trump. The position of the Biden Administration, as reflected in this Executive Order, is consistent with the existing status quo under New York State law regarding participation of transgender students in school and sports. As such, this change in position at the federal level is unlikely to have a significant impact on the way schools in New York State approach the issue.

While the Executive Order addressing participation of transgender students in school may not have any dramatic practical implications for schools in New York State, President Biden also signed other Executive Orders that likely signal more changes that may impact schools in various ways during the term of the Biden administration. For example, on January 20, 2021, President Biden also signed an order, titled, “Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” (the “Equity Order”). In this order, it states, in part, that, “Our Nation deserves an ambitious whole-of-government equity agenda that matches the scale of the opportunities and challenges that we face.”

The Equity Order directs federal executive departments and agencies to conduct a broad review of programs and procedures in order to, “recognize and work to redress inequities in their policies and programs.” The Equity Order requires federal agencies to undertake a specified review process and prepare reports regarding their findings by August of 2021.

The Equity Order refers to historic and systemic aspects of federal programs and policies that harm groups that, “have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.”

While the Equity Order does not have immediate direct implications for school districts in New York State, it is reasonably viewed as an indicator of the role “equity” will have in coming federal guidance and regulations that will likely impact school districts.

Significantly, the Equity Order provides the following specific definition of what is meant by the term “equity.”

“For the purposes of this order: (a) The term “equity” means the consistent and systemic fair, just, and impartial treatment of all individuals…”

On November 1, 2020, now Vice President Kamala Harris tweeted that, “There’s a big difference between equality and equity.” References to a perceived inadequacy of the concept of “equality” to facilitate a fair and just society are becoming commonplace, whether it be on social media, in statements by politicians, or statements or written work of academics who have become well known figures in popular culture.

Following the issuance of the Equity Order, an online Newsweek article, titled, “Joe Biden’s Use of ‘Equity’ Over ‘Equality’ Opens New Front in Culture War” (https://www.msn.com/en-us/news/politics/joe-biden-s-use-of-equity-over-equality-opens-new-front-in-culture-war/ar-BB1dhVVA) The article noted the frequent use of the term “equity” in orders and statements by the new Biden administration. The article cited to a question about the difference between equity and equality posed by Senator Tom Cotton to Representative Marcia Fudge during her Housing Secretary confirmation hearing. The article quoted Fudge as answering the question as follows:

“From my own perspective, the difference is that one just means that you treat everybody the same,” Fudge said. “Sometimes the same is not equitable.”

As we strive to become more inclusive and deepen our understanding, the concept of “equity” appears be on the ascendancy in our society, whether it be at the level of popular culture or the highest levels of politics and corporate culture. Its impact on school districts within New York State is already being felt, prior to any federal requirements that might be anticipated. Many districts have begun to review their policies and assess their programs with an eye toward equity. In addition, professional development opportunities are being offered in many districts to facilitate a greater understanding of the relationship and differences between equality and equity and what they might mean for our students, staff and communities.

We recommend that you work closely with counsel as you consider these approaches. Given the broad and somewhat vague definition of “equity” that is currently being used, board policies and training programs adopted in haste may create, in addition to well-intentioned changes, unintended consequences and liabilities. Counsel can assist in promoting the former and preventing the latter.

At the start of this journey, remember there are the various sources of enduring legal authority that prioritize the concept of equality and mandate equal treatment of individuals. Federal statutes, such as Title VII and Title IX, compel such equal treatment of individuals regardless of their race, sex, etc., in domains including employment and public education. Further, the U.S. Constitution compels public entities, such as school districts to treat all individuals equally under the law. Many New York State statutes and regulations also similarly have “equality” of all persons as primary axioms. Indeed, the definition of “equity” in the Equity Order, certainly embraces the concept of “equal” treatment under the law. It will be interesting to see how the Biden administration’s calls for “equity” and the adoption of policies affirming a commitment to “equity” diverge from or are compatible with the laws, policies and practices that call for equal treatment of individuals.

We will keep you informed and updated as the new administration in Washington provides legal requirements, guidance and resources facilitating equity for our students, staff and communities.