A Redo of the Title IX Regulatory Framework?
In the words of the iconic baseball player and manager, Yogi Berra, it feels like “ deja vu all over again.” Last month, President Biden issued an Executive Order on “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity” (“EO”). Under the EO, the US Secretary of Education, in consultation with the US Attorney General, is instructed to review all existing regulations, orders, guidance documents, policies, and any other agency actions that are or may be inconsistent with the Biden Administration’s policies on discrimination on the basis of sex, including, most notably, the Title IX regulations that came into effect in 2020.
The EO further directs the US Secretary of Education to review existing Title IX guidance and issue new guidance as needed, and to consider suspending, revising, or rescinding any agency actions that are inconsistent with the Biden Administration’s policies. Lastly, the EO requires the US Secretary of Education to consider taking enforcement action to, among other things, account for the significant rates at which students who identify as lesbian, gay, bisexual, transgender, and queer (LGBTQ+) are subject to sexual harassment; to ensure that educational institutions are providing appropriate support for students who have experienced sex discrimination; and to ensure that school procedures are fair and equitable for all.
The EO gives clear signal that President Biden is looking to take action on the existing Title IX regulations promulgated by the prior Administration. Such action could take one of several different forms, including the launch of a full notice and comment rulemaking process with a view towards replacing in full the current regulations; the undertaking of revisions to select portions of the 2020 Rule; or the issuance of sub-regulatory guidance meant to interpret certains aspects of Title IX. All of these would ultimately be designed to achieve better alignment with the current Administration’s policies, but would entail different tradeoffs between expediency and efficacy in doing so. The US Secretary has 100 days to engage in the above-referenced review, after which time we should have greater visibility into the potential path to be taken going forward, and the resulting consequences for Title IX’s regulatory framework.
