Dive Brief:
- The U.S. Department of Education is once again pushing back the release of its highly awaited regulatory proposal on Title IX and now plans to publish it in June.
- The draft rule will dictate how colleges and K-12 schools must investigate and potentially punish sexual misconduct. The head of the department’s Office for Civil Rights last year said it expected to issue the proposed regulation in April. The department then delayed the draft until this month.
- But the department “is taking the time necessary to ensure that schools are providing students with educational environments free from discrimination,” an agency spokesperson said in a statement, explaining why it now anticipates releasing the draft regulation next month.
Dive Insight:
Postponing the intended timeline for the draft rule runs against the wishes of advocates for sexual assault prevention, some of whom had called for the Education Department to publish it by the beginning of October 2021.
In other circles, the prospect of a new regulation is highly unpopular. More than two dozen organizations, led by conservative advocacy group Defense of Freedom Institute for Policy Studies, last month urged the department to abandon efforts to rewrite the current rule, which took effect August 2020 under former Education Secretary Betsy DeVos.
The DeVos-era rule sets up a tribunal for colleges to evaluate sexual assault cases. They call for an accused student and an accuser to be able to question each other through an adviser.
The groups wrote in a letter that the DeVos regulation preserves due process rights, something civil liberties advocates said previous federal Title IX guidance lacked. DeVos had railed against policies instituted by the Obama administration in 2011 that she said tipped the scales too heavily against students accused of campus sexual misconduct. The Obama-era guidance, which DeVos rescinded in 2017, was largely credited with sharpening focus on these issues.
The coalition in its letter also raised concerns that a new rule reportedly will protect gay and transgender students from sex-based discrimination under Title IX. The groups wrote that allowing transgender women to participate in sports aligned with their gender identity would “wreak havoc on Title IX’s requirement to establish and maintain a level playing field” for female athletes.
This echoed complaints from 15 Republican state attorneys general who last month threatened to sue the Biden administration over the forthcoming rule.
The Education Department’s publication of a draft rule in the Federal Register will trigger a public comment period, typically 60 days. Once the department reviews this feedback, it will finalize a regulation.
As of Monday afternoon, the agency had no further meetings scheduled to discuss the Title IX rule. The last scheduled meeting was May 20.
Pushing back the Title IX release date could jeopardize the rule.
Depending on when the regulation is finalized and which party controls Congress after the midterm elections, a new Republican majority could undo it through the Congressional Review Act. This gives lawmakers the ability to reject major executive actions within 60 days of rules being submitted.
