Proposed Title IX Rules Under Review

The Biden Administration might miss its self-imposed deadline to release proposed Title IX rules to the public in April.

In December 2021, the federal Education Department states its intention to publicly release the Title IX proposal in April, one month ahead of the previously announced schedule. The draft changes were submitted in February 2022 to the Office of Information and Regulatory Affairs (OIRA), which must review all Executive Branch regulations. The Department of Justice (DOJ) must also review the changes.

As of the date of this writing in late April, there’s no sign of imminent release. At Parisi, Coan, & Saccocio, PLLC, we continue to monitor this and all other Title IX issues to provide effective defense strategies for our Title IX clients.

Why Title IX Changes Are Being Proposed

Presidential administrations commonly put their own mark on federal rules and policies. During the 2020 campaign, then-candidate Joe Biden said that he would undo many of the changes his predecessor made to Title IX.

Some celebrated the changes under then-Secretary of Education Betsy DeVos stating that the rules even the playing field for accusers and the accused by providing stronger due process. Others thought these changes favored those accused of sexual misconduct.

Amendments to Title IX will likely address priorities in two executive orders:

  • Executive Order 13988 on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
  • Executive Order 14021 on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity

The rulemaking will probably involve changes to 34 CFR 106.8 (Designation of coordinator, dissemination of policy, and adoption of grievance procedures), 106.30 (Definitions), 106.44 (Recipient’s response to sexual harassment), and 106.45 (Grievance process for formal complaints of sexual harassment).

How the Review Process Works

The submission of the draft amendments is known as a Notice of Proposed Rulemaking (NPRM). At this stage of the rulemaking process, the draft NPRM is not yet available for public viewing. OIRA coordinates the 12866 review, which is a standard across all federal agencies. The review’s analysis of the costs and benefits of proposed rules is designed to promote accountability.

In addition to OIRA, the DOJ is responsible under Executive Order 12250 to review any change related to civil rights. The Title IX changes fall under the agency’s jurisdiction for review.

After the internal reviews are complete, the NPRM will be published in the Federal Register, making the proposed changes publicly available. A period of public comment will follow.

When Current Rules Will End

Until new rules are formally adopted, the previous changes effective in 2020 remain active. The only exception to this is that OCR has ceased enforcement of the regulatory requirement in 34 C.F.R. § 106.45(b)(6)(i) regarding the prohibition against relying on statements not subject to cross-examination. A federal district court vacated that requirement in Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021), appeals pending (1st Cir.).

Title IX Defined

Title IX was passed by Congress in 1972 to eliminate sex-based discrimination in educational programs and activities at any public or private educational institution that accepts federal funds. Since its enactment, Congress and court rulings have clarified or expanded Title IX protections. The law, which will soon celebrate its 50th anniversary, is controversial. The debate will surely continue when the proposed new rules are announced publicly.

Focused Defense for Title IX Clients

The discrimination law plays an important role, but the complaint process can feel stacked against anyone accused of wrongdoing under Title IX. The individual implicated is sometimes penalized before the investigation is complete or is subjected to retaliation.

Parisi, Coan, & Saccocio, PLLC focuses on Title IX and defending students, faculty, and staff members who face the Title IX disciplinary process.

If you are accused of Title IX violations, we will fight for your due process and rights. Our results-driven counsel is backed by decades of experience. Contact us online or call (737) 200-2332 to schedule a consultation.