On April 6, the Department of Education's Office for Civil Rights (OCR) issued a new letter to students, educators, and stakeholders indicating the process that the Biden Administration will be undertaking on the issues surrounding the Title IX regulations. While light on details, the letter does provide a roadmap for OCR's next steps and what colleges and universities can expect in the Title IX regulatory arena in the near future.
At a minimum, OCR's letter is intended to provide information about the steps the Department is taking to carry out President Biden's recent Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity. (See Duane Morris' write up on the Executive Order here) That Executive Order directed the Secretary of Education, in consultation with the Attorney General, to review all existing regulations, orders, guidance documents, policies, and any other agency actions that may be inconsistent with the Biden Administration's policies on discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, as well as discrimination on the basis of sexual orientation or gender identity.
The letter also announced that OCR has started their Title IX comprehensive review, as required by the EO, specifically referring to the 2020 Title IX regulations. The review includes gathering feedback to enable OCR to determine whether changes or additions to the Department's Title IX regulations and any related agency actions may be necessary to fulfill the EO and the Department's commitment to ensuring equal and nondiscriminatory access to education for students at all levels.
As part of this process, the Department plans to hold public hearings where students, educators, and others with interest and expertise in Title IX will be able to participate by offering oral comments and written submissions. OCR expects to announce dates and times for these hearings in the coming weeks.
In addition, OCR announced that a Question & Answer document would be published in the coming months. The purpose of the Q&A document will be to "provide additional clarity about how OCR interprets schools' existing obligations under the 2020 amendments, including the areas in which schools have discretion in their procedures for responding to reports of sexual harassment."
Finally, the letter states that after the internal review is complete and public comments are submitted, OCR anticipates publishing a Notice of Proposed Rulemaking "to amend" the Department's Title IX regulations. Such publication will provide for a formal notice-and-comment period.
Notably, this letter has not won much immediate praise from Title IX activists and advocates, who were pushing the Biden Administration to fully rescind the 2020 Rule instead of amending it. The current administration could be signaling a compromise approach as well as a willingness to acknowledge that the 2020 Rule includes provisions that they support. At the same time, the process of amending could include a complete, or nearly complete, rewrite of the 2020 Rule.
The announced process is also a recognition that any significant amendments to the 2020 Rule could be years away. The previous administration's work was significantly delayed by the over 124,000 comments received in response to the previous Title IX NPRM. That NPRM was announced on November 16, 2018, but the final rule was not effective until August 14, 2020, nearly twenty-one months later.
The UpdateED blog will be sure to keep you informed about the oral comment schedule and the process by which comments can be submitted and delivered. As always, we are also closely watching the Department's rulemaking efforts and will be sure to keep you abreast of all the latest information, how you can make your voice heard, and how Duane Morris can help.
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