The U.S Department of Education appears as though it will again miss the deadline it set for finalizing two highly anticipated Title IX regulations.
The Biden administration has prioritized remolding policies around Title IX, a law banning sex-based discrimination, including sexual assault, in federally funded colleges and K-12 schools.
One of the the Education Department’s regulatory plans would direct how colleges investigate and potentially punish sexual assault. The other would prohibit blanket bans on transgender athletes participating in sports teams aligning their gender identities. However, colleges and schools could bar transgender players from joining teams if they decide they need a sex-based restriction to preserve fairness or prevent injuries.
The Education Department has said it will issue the final rules in March, but it hasn’t yet cleared a key procedural hurdle. Further delays will assuredly draw more ire from sexual assault survivor advocates, who say current Title IX regulations dissuade students from reporting sexual violence and license colleges to investigate fewer incidents.
What’s causing the delay?
The Education Department has missed its deadline for releasing final Title IX rules several times.
It pushed back releasing the draft version of the broader Title IX regulation a couple of times in 2022, before publishing it in June 2022. The Education Department dropped the draft of the athletics rule in April 2023.
The department said it would issue its final, broader Title IX rule in May of last year, but did not. It then pivoted to an October deadline for both regulations, which it also missed.
The rules likely won’t be ready in time for March either. That’s because as of Friday afternoon, the Education Department hasn’t yet transmitted them to the Office of Management and Budget for evaluation, a required step.
A wing of that agency, the Office of Information and Regulatory Affairs, or OIRA, has up to 120 days to review the regulations. Even if the Education Department sent OIRA the regulations in the next week, the rules wouldn’t be ready until at least May if that office uses its entire 120 days to evaluate them.
OIRA could sign off on the rules right away. But that’s not likely, as agency officials must meet with anyone — lawyers, advocacy groups, college leaders — interested in offering feedback on final regulations, Melissa Carleton, a lawyer specializing in higher ed at Ohio-based firm Bricker Graydon, said in an email this month.
She expects many parties will request meetings and that OIRA will take all 120 days. The office took the full time to consider the current Title IX rule, made final in 2020 by former Education Secretary Betsy DeVos.
In fact, the Education Department will probably need more time after that to ready the regulations.
“If we give the Department of Education another few weeks to get it ready for publication, we’re looking at a June 2024 release at the earliest,” Carleton said.
That was the case for the DeVos-era rule.
“It took another few weeks after their review was over before the regulations were published as final,” Carleton said.
Preparing such complex regulations is a major lift, as the Education Department’s final rules must respond to the deluge of public comments that came in on the two proposals. They collectively attracted more than 390,000 public comments.
An Education Department spokesperson said Wednesday it still anticipates issuing the final two rules in March.
“The Biden-Harris Administration remains resolute in our commitment to support all students and ensure they receive a quality education free from discrimination,” the spokesperson said. “The notice of proposed rulemaking for the upcoming regulations on Title IX of the Education Amendments of 1972 received a historic number of comments.”
How are advocacy groups responding?
Postponing the Title IX rules is “deeply disappointing,” said Shiwali Patel, senior counsel and director of justice for student survivors at the National Women's Law Center.
Right now, survivors are left in the lurch because of DeVos’ Title IX rule, Patel said.
It requires colleges to adjudicate sexual violence reports through live hearings in which an accused student and an accuser can question each other through a surrogate. Some survivors have eschewed formal reporting at their colleges to avoid the trauma of the process, particularly cross-examination, Patel said.
The Biden administration’s proposal would give more flexibility, allowing colleges to either hold live hearings or use other models. In some states though, court rulings have required institutions to host hearings.
Patel also noted the rise in state legislation targeting transgender students. More than 20 states have passed laws or regulations restricting transgender students from participating on sports teams consistent with their gender identities.
“LGBTQIA+ students have a need for decisive strong action that clarifies their rights,” Patel said.
Some legal pundits have argued the Biden administration is carefully crafting the regulations to safeguard against lawsuits. For instance, state anti-trans legislation concerning athletics, like in Texas, directly conflicts with the Education Department’s sports regulatory proposal.
And 15 Republican attorneys general wrote to the Education Department in 2022 saying they were “prepared to take legal action to uphold Title IX’s plain meaning and safeguard the integrity of women’s sports.”
Patel said legal challenges to the rules were inevitable and aren’t an excuse to further delay the regulations’ release.
Carleton had a different take. Even though the higher ed world and beyond is frustrated waiting for the rules, it’s important to take time so they are “understandable and able to be thoughtfully implemented,” she said.
“If that takes some extra time, I hope that better regulations are the result,” Carleton said.
