The U.S. Department of Education probably won't meet its own October deadline for releasing the two final Title IX regulations that colleges are anxiously awaiting, policy experts and practitioners say.
The likely delay is a blow to the Biden administration, which has made a rework to federal sexual misconduct and gender identity policies a signature initiative. Colleges are also in an awkward position of adhering to an existing Trump-era Title IX regulation, while still needing to prepare for a completely new slate of rules.
Title IX is the law banning sex-based discrimination, including sexual violence, in federally funded colleges and K-12 schools.
The White House has dual regulatory proposals pending: One would dictate how institutions investigate and potentially punish sexual misconduct, and the other would prohibit blanket bans on transgender athletes taking part in sports that match their gender identity. However, transgender players might not be allowed to participate in sports aligned with their gender identity if a school determines it needs a sex-based restriction, like to ensure fairness or prevent injury.
The Education Department targeted a May release date for the final rules, which it then moved to October. It also initially wanted to issue the sexual misconduct Title IX rule in April.
Now, the department has not yet sent the regulations to the Office of Management and Budget for review, a required step. A branch of that agency, the Office of Information and Regulatory Affairs, or OIRA, has up to 120 days to evaluate the regulations.
Thus, if the Education Department transmitted the rules to OIRA this week, and it took all 120 days, that would put the shortest possible timetable into the very end of December. In reality, the Education Department then will likely need even more time to make any OIRA-recommended changes to the regulations.
It already needed to wade through and respond to feedback that poured in during the initial public comment periods that occurred this year and last. The broad Title IX proposal received more than 240,000 comments, while the athletics one garnered more than 150,000.
The Education Department did not provide a comment by publication Thursday.
It’s possible — but highly unlikely — the department could still make its October deadline, said Melissa Carleton, a lawyer who specializes in higher ed at the firm Bricker Graydon.
That’s because OIRA doesn’t have to take months for review, Carleton said. It could sign off on the rules in a single day, she said.
However, OIRA must also meet with parties interested in giving feedback on the regulations — that could be anyone, from lawyers to advocacy groups. And OIRA will assuredly take many of those meetings, given the significant scrutiny around the two regulations, Carleton said.
“It’s such an important regulation, and there’s so many different opinions, and so much legal risk involved, OIRA is going to take an appropriate amount of time,” Carleton said.
OIRA exceeded 90 days when reviewing the current rule which mandates that colleges host live hearings to assess reports of sexual violence. The regulation, made final in 2020 by Education Secretary Betsy DeVos, has attracted controversy for requiring that accused students and the accuser be able to question the other side through a surrogate.
Carleton said she expects colleges to have to follow new regulations by July 1. A similar timeline was predicted by Brett Sokolow, president of the Association of Title IX Administrators.
Sokolow wrote in a public post that he predicts a final rule in spring 2024, with it going into effect that summer.
In the meantime, the policy landscape is confusing and treacherous for colleges. They have to contend with the approaching new set of rules, along with legal requirements based on institutions’ location.
Texas, for instance, passed a law this year that bans transgender athletes at the state’s public colleges from participating in sports aligned with their gender identity, setting up a clash with the Biden administration’s Title IX proposed rule on transgender rights.
Some courts have also ruled that colleges must hold the live hearings. Biden’s regulatory proposal would give institutions flexibility to either hold hearings or use other investigation models. But colleges in states affected by court decisions would still have to go with the hearings.
Still, Carleton said that colleges can have conversations now about how they want their policies to look, as the draft rules have given them some insight into what Title IX mandates are coming.
