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. It is also expected to include protections for transgender students. 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. A coalition of 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 required schools to completely overhaul their reporting and investigation processes in some cases. New requirements included investigating sexual assault when any school employee is put on notice and appointing two different staff for the investigation and decision. Some education organizations were critical of the changes, which came at a time when schools were already spread thin due to COVID-19.
Others praised changes ridding the live hearing requirement for K-12.
DeVos had railed against policies instituted by the Obama administration, which included a Dear Colleague letter protecting rights of LGBTQ students, as well as transgender rights. That Obama-era guidance was rescinded in 2017.
Now, the coalition of organizations pushing back against the upcoming Title IX rule 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.
Efforts to push back mirror those under the DeVos administration, when left-leaning organizations and attorneys general attempted to block 2020 regulations.
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.
Naaz Modan contributed to this story.
