Title IX Regulations Release Pushed Back: Advice for Proactivity as Schools Face Further Delay

Types : Alerts

By: Ashley Lynam, Co-Chair and Tara Hessenthaler, J.D. Candidate

With a new academic year underway, colleges and universities across the country are faced with the Department of Education’s latest hurdle: further postponed Title IX regulations. Higher education institutions will thus need to strike a balance between remaining compliant with the Trump-era 2020 regulations while also taking proactive steps to ensure a smooth transition into, what could be, the 2024 rules.

The Department of Education, through its Office for Civil Rights (“OCR”), first published a set of draft rules in July 2022. OCR originally stated that May 2023 was the deadline for the revised regulations, but when that date came and went, a new goal was set for October 2023. Unfortunately, a realistic look at the regulations’ timeline reveals that adherence to the October deadline is almost impossible. Much of this delay can be attributed to the more than 244,000 comments received from the public regarding the July 2022 draft that OCR is now tasked with considering while finalizing the latest Title IX regulations.

OCR also still needs to transmit a final draft to the Office for Management and Budget, specifically to the Office for Information and Regulatory Affairs (“OIRA”). OIRA is tasked with conducting meetings with representatives from affected agencies and other interested parties. OCR will then take the feedback and requested changes produced from these meetings and implement them into the final regulations, a process that took approximately two months with the 2020 rules. The transmittal can be monitored here, and the OIRA review process is expected to last between 90 and 120 days.

All this being said, it is expected that publication of the new Title IX regulations will occur four to six months after the transmission date to OIRA. Even if transmission occurs in early September, the final publication will not happen until between January 2024 and March 2024, which is dramatically after the Department of Education’s October 2023 deadline. OCR typically gives schools 60 to 90 days from the date of publication to comply with the regulations before enforcement begins; however, there is no binding rule on the permitted time period. Thus, higher education institutions should anticipate the final regulations by Spring 2024, with implementation extended to Summer 2024 in order to provide schools with ample time to revise policies and procedures and train staff members with the new rules.

The question thus remains: what can institutions do now to prepare for the new Title IX regulations? We recommend taking six proactive measures:

• Review: Institutions will want to review their specific process for revising the school’s policies and procedures. In case there is a shorter than expected turnaround time for implementation and compliance, institutions need to know how to revise their policies and ensure they consider their individualized governance structure and key stakeholders. Familiarity with such procedures will help institutions minimize the stress and academic disruption that often come with drastic changes to a school’s policies.
• Address: Title IX coordinators should begin to conduct a barrier analysis to identify their on-campus hurdles that lead to underreporting of sexual violence and discrimination. Underreporting rates often range from 70% to 90%, and under the proposed regulations, institutions would be required to prevent sex discrimination from reoccurring. Such prevention could include Title IX coordinators conducting campus climate surveys to assess the frequency at which students experience sex discrimination without reporting it or gathering feedback from students and employees about their own experiences reporting sex discrimination. Institutions can begin to conduct analyses to identify these barriers, specific to their school, that lead to underreporting and take steps to address them prior to the final publication of the new regulations.
• Predict: The July 2022 draft rules provided institutions with insight into what the new Title IX regulations will look like. For example, the term “sex discrimination” will likely include discrimination based on sexual orientation and gender identity. Moreover, the final regulations will likely extend jurisdiction to sex-based harassment contributing to a hostile environment, even if it occurs outside of an education program, activity, or even the United States. By planning for the draft changes that are expected to remain intact for the final regulations, schools can ensure that they have the necessary personnel and infrastructure in place to implement prompt compliance.
• Communicate: Institution administrators should begin conversations, both internally and with legal counsel, about how they plan to implement the new regulations. Notably, institutions should familiarize themselves with their respective state laws, especially those that limit protections related to gender identity. While implementation will need to comply with the new regulations, institutions in states such as Texas, Florida, Georgia, and Montana should discuss with legal counsel how they can reconcile potential conflicts between state law and federal regulations. Moreover, Title IX administrators should start discussions with their academic communities about how they want their policies to look and what choices best support their culture, resources, and institutional goals.
• Develop: Institutions should develop a plan for how they will promptly communicate the regulations’ changes to members of their community. We suggest using committees, such as a Title IX team or task force, to identify the policies, procedures, documents, and websites that need to be changed, as well as set timelines for consideration. If everyone on the team understands their role, the transition to compliance with the new regulations will be smooth, and no community member will be left in the dark about new expectations.
• Remain Compliant: The most important thing for higher education institutions to remember throughout their proactive measures is that, as of now, compliance with the Trump-era 2020 Title IX regulations is key. As the Fall 2023 semester begins, there are no changes set in stone yet, and schools will want to continue to practice procedures set forth in the 2020 regulations in order to avoid liability.

We encourage higher education officials to take the above-mentioned proactive steps to ensure a timely transition to the highly anticipated Title IX regulations and reach out to their counsel for compliance advice as needed.