Here we go again. It feels like deja vu.

Remember in August 2021 when the Pennsylvania Secretary of Health issued an order requiring all students to be masked at school? Most, but not all school districts in the state complied with the order that was ruled unconstitutional by the Pennsylvania Supreme Court a few months later.

Prior to the start of the 2021-2022 school year, then-Governor Tom Wolf urged districts to enact mask mandates on their own; however, too many districts failed to comply, and he could no longer declare a state of emergency independently, thanks to the constitutional amendments passed earlier that year.

Once Wolf was stripped of his powers and could not unilaterally mandate masking, he did the next best thing: he had his Secretary of Health issue an order to buy him a few more months of forced masking. Wolf likely anticipated the Pennsylvania Supreme Court would find the order unconstitutional, but he did it anyway. And most districts complied and required masks in school.

Wolf’s strategy is eerily similar to the current implementation of the new Title IX regulations promulgated by the Biden administration. As I explained last week, the U.S. Department of Education (DOE) under the direction of Biden and Harris rewrote the Title IX rules, originally  enacted to protect girls and women, to basically strip away their rights and protections.

And just like the masking order, the new rules are wreaking havoc for school districts, students, teachers, and parents. Two federal courts have issued preliminary injunctions blocking the regulations from being enforced in multiple jurisdictions. DOE appealed the injunction to the U.S. Supreme Court and lost. Based on the rulings thus far, it seems likely these regulations may be deemed unconstitutional by the U.S. Supreme Court.

As a result of the injunctions, the rewritten regulations that expand the definition of sex to include “gender identity,” are currently blocked in totality in 26 states. The rules are also unenforceable by DOE in any school in the country where a parent is a member of Moms for Liberty or Young America’s Foundation.

An important and underappreciated part of the court order includes both current and prospective members of the organizations, meaning parents can join these groups at any time and their school is automatically exempt from enforcement.

While DOE is concerned about managing which schools are included and excluded, the court was not swayed.

“This is a problem of DoE’s own making…. One might have expected that upending the operations of virtually every school in the nation by upsetting the decades-long understanding of important parts of Title IX, as the Final Rule does, would result in some significant difficulties for enforcement while the Final Rule undergoes judicial review. As the court suggested in its prior order, Congress has given DoE at least one tool to mitigate the hardships that its new rule imposes on those who are subject to it while the judicial review process plays out in courts across the country. Congress gave DoE the authority to postpone the effective date of the Final Rule pending judicial review. Maybe DoE should use that authority.”

Yes, maybe DOE should use the authority granted by Congress to delay the implementation of the new rules. But just like Governor Tom Wolf, the Biden/Harris administration wants to push this agenda so school districts enact the rules even if they are eventually deemed unconstitutional. Once the rules are in place, it is harder to roll them back.

School districts now have a choice to make about the implementation of the new regulations. The majority of local districts have at least one school included in the injunction. Should they implement the new rules in some schools and not others, while knowing schools can be added at any time? And what are the true consequences for failure to implement? If prior actions are an indicator of future behavior, there will be no consequences to districts who do not implement the new rules. Districts that did not enact the mandatory mask mandate in 2021 suffered no consequences from the state, and it is highly unlikely DOE will take any disciplinary action for failure to comply given the current court cases.

As the school year is rapidly approaching, local districts are taking different approaches. In the Ephrata Area School District, located in Lancaster County, they are not implementing the new rules in any of their buildings due to the preliminary injunction because they have at least one school included in the injunction.

Lancaster Online reported, “Superintendent Brian Troop issued a statement saying the district will continue to comply with the 2020 version of regulations, which offers protection against all sex-based harassment and discrimination. Troop said the district will follow the recommendation by the U.S. Department of Education and district solicitor Saxton & Stump.”

Rather than create chaos and confusion within the district, Ephrata is maintaining compliance with the previous regulations and rejecting the rewritten rules until there is more clarity from the court. 

Conversely, the West Chester Area School District, located in Chester County, is taking the opposite approach. The board voted on Monday, August 19, 2024, at a special meeting to approve two policies related to Title IX — one complying with the 2020 regulations and one complying with the 2024 rewrite. The board also voted to waive the regular policy adoption process to allow for two readings of the policy at consecutive school board meetings in order to fast track the implementation. The policies and change in process were approved unanimously with the exception of one dissenting vote.

At the meeting, Superintendent Dr. David Christopher acknowledged that one elementary school was currently included in the injunction and other schools would likely be added. His assertion was confirmed by a local resident and Moms for Liberty representative who made public comments stating all three middle schools and high schools in the district have parents who are members of the organization and as such are included in the injunction.

Based on the board vote on Monday, West Chester has two different policies that will be applied to each school depending on whether the school is impacted by the injunction. They claim they are prepared to pivot as new schools are added.

In response to a request for comment, the superintendent said the district never considered avoiding adoption of the new regulations. “The timeline from the U.S. Department of Education was definitive. I would also like to state clearly that the District is not currently enjoined from doing anything under the federal lawsuits. The United States Departments of Education and Justice are enjoined from enforcing the new regulations in certain schools that have been included on the lists filed with the court. However, WCASD is not party to this lawsuit involving the new Title IX regulations.”

Christopher does not expect any complications from operating under two policies. “I do not anticipate significant challenges since we also have laws in Pennsylvania that require schools to ensure there is not discrimination based on gender identity…. The only thing that will change at West Chester is the pathway in which the complaint of alleged discrimination or harassment will be directed to be resolved.”

For example, under the 2020 rules, misgendering someone (not using their preferred pronoun or name) either intentionally or unintentionally is not a valid complaint under Title IX; however, it is a valid complaint under the 2024 rules.

Despite Christopher’s assertions, it seems like a complicated and convoluted system, especially in light of the strong possibility that the new Title IX regulations, either partially or in their entirety, will be deemed unconstitutional. Yet again, like the masking mandate, West Chester is jumping in with both feet, rather than taking a conservative approach like Ephrata.

School board meetings are scheduled across the region over the next few weeks to address this issue, and it remains to be seen how many districts will jump right in or take a “wait and see” approach. Until all the court proceedings are settled, students and teachers are at the mercy of their school district to decide whether they will once again wreak havoc in the daily operations of their schools — not to mention the adverse impact on girls and women in our schools.

Beth Ann Rosica resides in West Chester, has a Ph.D. in Education, and has dedicated her career to advocating on behalf of at-risk children and families. She covers education issues for Broad + Liberty. Contact her at barosica@broadandliberty.com.