In December, the Biden Administration announced that it plans to release new Title IX draft rules to the public by April 2022. (See our previous post on the announcement here.) Last week, the Department of Education Office for Civil Rights (OCR) provided an update on the latest step in this process.
On Friday, OCR reported on its blog that the Department of Education sent the draft of the proposed Title IX amendments to the Office of Information and Regulatory Affairs (OIRA). At this stage, the draft amendments—known as a Notice of Proposed Rulemaking (NPRM)—are not yet available for public viewing. An internal review will be conducted by OIRA and the Department of Justice to analyze the costs and benefits of the proposed rules. Following the internal review process, the Department of Education will publish the draft rules in the Federal Register, where members of the public will have the opportunity to submit their comments on the proposed regulations. While the FAQs on the OIRA review process state that the process may take up to 90 days, the Department of Education may still be on track to issue the proposed amendments in April depending on how long the OIRA review takes.
In the blog post, OCR reminded the public that the current 2020 Title IX regulations are still actively being enforced by OCR, except for the provision requiring colleges and universities to rely only on statements that are subject to cross-examination, following the Cardona decision that vacated that requirement. (See the earlier OCR letter on the Cardona decision here. You can read our analysis of Cardona in our post here.)
However, OCR has provided hints of what to expect in the proposed regulations, which are intended to align with key priorities outlined in President Biden’s Executive Orders related to preventing discrimination on the basis of sexual orientation and gender identity.
Specifically, OCR stated that it anticipates the proposed rules may include amendments to the provisions of the Title IX regulations that deal with the Title IX Coordinator and an institution’s policy and grievance procedures, key definitions, an institution’s response to sexual harassment, and the formal grievance process. Not named on this list are provisions regarding the religious exemption and the interplay between Title IX and other laws, however OCR did not preclude any provisions of Title IX from being subject to possible amendment. Given the Biden Administration’s renewed push for protections for the LGBTQ+ community, we anticipate it is likely that the new regulations will include language prohibiting harassment based on sexual orientation and gender identity.
As always, we will keep you posted on key updates regarding Title IX and the anticipated proposed regulations by the Biden Administration. Feel free to reach out to any member of our Title IX team of attorneys if you have any questions.
*Also authored by Jenny Lee, a third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.