As a Presidential candidate, Joe Biden promised that, if elected, he would put a “quick end” to the Trump administration’s 2020 Title IX rule on sexual harassment. Now, Biden is the projected winner of the 2020 Presidential election. What does that mean for Title IX and, most importantly, for the schools, colleges, and universities that must comply with it? The Trump administration used rulemaking to update Title IX, not the more-easily discardable informal guidance used by the Obama administration. Unwinding this complicated new system will be challenging, and doing it in a way that protects the educational institutions who must comply with the law is essential. This post contains key questions and answers for school leaders about what the election results mean for Title IX.
Biden won. Does that mean that we don’t have to keep using those pesky Title IX regulations?
Even if a Biden/Harris administration moves quickly to end the 2020 Title IX rule, rolling back the rules will be complicated. At the very least, schools, colleges, and universities must use the 2020 Title IX rule until inauguration on January 20, 2021. Even then, it is not likely that the rules will suddenly disappear. As discussed more below, unless the rules are overturned through legislation or rulemaking—both of which will face important roadblocks—there will be legal risks for educational institutions that do not use the 2020 regs. This is true even if the Biden Department of Education says it will not enforce the rules or issues new informal guidance that contradicts them. As much as many of us would like these rules to be a resource-sucking, poorly-thought-out bad dream, this nightmare will likely need to be our reality for quite some time. Any other option could lead to costly legal challenges against educational institutions for failing to offer protections required by the law on the books.
At the very least, schools, colleges, and universities must use the 2020 Title IX rule until inauguration day, which is January 20, 2021. Even then, it is not likely that the rules will suddenly disappear.
Won’t Biden’s Education Department just issue its own new rule?
This seems likely and prudent. Although many of us in the field have issues (many, many issues) with some of the details in the 2020 Title IX regulations, there has been some benefit to having the clarity of a detailed rule to help schools understand what the Department of Education’s Office for Civil Rights (OCR) expects from us concerning Title IX.
There is no reason to think that the road to new regulations would be any quicker for President Biden than it was for President Trump, making rulemaking a less-than-ideal option for efficient change.
A new rule won’t happen for quite some time, however. Keep in mind that President Trump promised a new Title IX rule during his candidacy for the presidency in 2016. However, it was not until November 2018 that Secretary of Education Betsy DeVos issued the proposed Title IX rule. The Education Department then spent the next 18 months (until May 6, 2020) poring over the nearly 125,000 comments received during the rule’s notice-and-comment period. And the rule only became effective on August 14, approximately 12 weeks before the next presidential election and five months before the end of President Trump’s term. There is no reason to think that the road to new regulations would be quicker for President Biden than for President Trump, making rulemaking a less-than-ideal option for efficient change.
Can’t Biden just refuse to enforce the regulations once in office?
A new President can leave an unfavored rule in place but simply direct the relevant agency not to enforce it. Presidents George W Bush, Obama, and Trump all used this option to avoid enforcement of rules they did not agree after taking office.
Nonenforcement works well when a regulation prohibits or requires conduct that the Presidential administration must enforce to effectuate. Examples include nonenforcement of rules criminalizing marijuana and rules requiring grant applicants to make certain civil rights assurances. Even in those cases, lawsuits challenging nonenforcement are common and sometimes successful.
Even if not challenged, nonenforcement will be of questionable use for Title IX. Here’s how it might work. The Department of Education would signal to educational institutions that there will be no penalty from OCR for noncompliance with the 2020 Title IX rule. What rules would they use instead? Perhaps the Department will reinstate Obama-era guidance or issue new guidance providing additional directions. Educational institutions could rest assured that their federal funding will not be in jeopardy if they go back to their pre-2020 policies and procedures for addressing Title IX sexual harassment.
Unfortunately, nonenforcement would not protect schools, colleges, and universities that jettison the 2020 Title IX rule from lawsuits. Respondents who are accused of sexual harassment may feel that a school’s choice not to follow the regulations—the law on the books—violates their due process rights.
A court might similarly agree with a respondent that schools must follow the Title IX regulations on the books even if the Department says otherwise.
A recent decision out of New York is an important warning on this point. In it, a student demanded that a school use its new Title IX policies and procedures for alleged misconduct that occurred before the 2020 Title IX rule’s effective date. A court agreed. Even though the Department of Education has repeatedly said that the rules are not intended to apply to conduct occurring before its effective date, the court found that the rules must be applied to the student’s case. A court might similarly agree with a respondent that schools must follow the Title IX regulations on the books even if the Department says otherwise.
It is equally unclear whether nonenforcement would prohibit using the 2020 Title IX regulations by schools, colleges, and universities that want to use the new rule. Some educational institutions may believe that the protections of due process rights and other elements of the current rule are best for their communities. Others may not want to risk a lawsuit from a party if it follows a nonenforcement directive. It is unclear what authority OCR would have to take federal funds from an institution that continues to apply the rule while it remains in effect.
The last thing we need in the world of education right now is unnecessary uncertainty. If [nonenforcement] is the only option available, the Biden team should carefully consider the potential chaos it could create for schools and parties to Title IX disputes.
In short, nonenforcement could leave educational institutions in a no man’s land where it would be unclear what actions would put a school at risk for legal challenges and OCR complaints. There is a significant risk that some schools would choose to use the rules and some would not, leading to a patchwork of enforcement across the country. The last thing we need in the world of education right now is unnecessary uncertainty. If this is the only option available, the Biden team should carefully consider the potential chaos it could create for schools and parties to Title IX disputes.
What about legislation? Can Biden jettison the 2020 Title IX Rule that way?
Congress can pass legislation either amending the Title IX statute or passing a new law that requires schools to use certain procedures to enforce Title IX. With a willing President ready to sign the law, this would overturn the Title Ix rule. Even if Biden’s transition team is currently working on such a plan for new legislation, and even if the Democrats experience a Georgia jubilee, taking control of the Senate, Republican senators can (at least under current rules) filibuster the Democrat’s agenda. This makes Title IX legislation less likely to make it onto President Biden’s desk.
However, one relatively obscure legislative option could prove to be the white knight in all of this uncertainty. If at the end of this term of Congress, it turns out that the Title IX rule was published in the Federal Register or submitted to Congress in the final 60 legislative days of the session, a law called the Congressional Review Act might allow the next Congress and Biden to reject the 2020 Title IX rule using an expedited legislative process that is not susceptible to the same obstacles to traditional lawmaking.
One relatively obscure legislative option could prove to be the white knight in all of this uncertainty.
Specifically, the next Congress can disapprove of any rule published in the Federal Register or submitted to Congress (whichever is later) in the previous 60 legislative days of the prior Congressional session. Unlike traditional legislation, CRA disapproval only needs a simple majority of Congress’s chambers and is not subject to a filibuster.
Although only used 17 times since its implementation in 1996, 16 of those instances were by the Republican Congress seated in 2017 under the Trump Presidency. This makes the CRA a particularly ripe and powerful tool for the Biden administration to seek to overturn the Title IX rule.
The downsides? Calculating the periods of eligibility for regulations to CRA disapproval is extremely complicated. The 2020 Title IX rule reportedly was published in the Federal Register on May 19, 2020, to avoid the CRA window. But the COVID-19 pandemic may lead Congress to have fewer days in session. We will have to wait to see if the calendar works in favor of the Biden administration and makes the Title IX rule susceptible to CRA review.
Unlike traditional legislation, CRA disapproval only needs a simple majority of both chambers of Congress and is not subject to a filibuster.
Another downside of the CRA is that it can be used only to repudiate an entire regulation. Congress cannot pick and choose pieces of the new Title IX rule to remain in effect. If a later Presidential administration wants to implement certain provisions from the 2020 Title IX regulations, Congress would have to allow it explicitly. This may be less than ideal because the Biden administration may see value in some of the provisions of the 2020 Title IX rule, even while wanting to jettison most of it.
What should the Biden/Harris team do if the CRA is not an option? Although it’s hard to find any person (this author included) who wants to live with these Title IX rules for one day longer than we must, the risks of litigation for educational institutions if they do not follow the due process requirements in rules that remain in effect are too great to abide. If no legislative fix is possible, the Biden team should carefully consider whether it is more appropriate to leave the 2020 Title IX regulations in place until they can be repealed or replaced. Educational institutions cannot afford the legal uncertainty that will result if the rules are left on the books and not enforced.
What should schools, colleges, and universities do now?
Until January 20, 2021, the new Title IX rules are still the law of the land. Title IX sexual harassment reports and formal complaints should be processed using the rules. Training should continue if it has not been completed. Policies and procedures and websites should be up to date and contain all required information.
If and when the Biden administration explains its plans concerning Title IX, schools, colleges, and universities should work closely with legal counsel to balance the legal risks that the proposed plan imposes on schools. An assurance that schools will not lose federal funding if they ignore the rules would be good. A description of what OCR expects schools to do instead be better. But only a plan that fully addresses the potential liabilities that schools, colleges, and universities might face if they fail to use a Title IX rule that is still on the books will provide educational institutions the support and protection they deserve.