What’s the fallout from the Education Department delaying new Title IX regulations?

On a recent visit to a college, Alexandra Brodsky encountered a group of students protesting Title IX who wanted it abolished.

Brodsky, an attorney at Public Justice, a legal advocacy organization, figured out quickly the students weren’t actually seeking the elimination of the linchpin federal law that protects against sex-based discrimination and sexual violence in schools. The demonstration represented their frustrations with the Title IX processes at that college, which Brodsky declined to name.

The protesters believed the institution had failed to adequately address alleged sexual misconduct, inaction that Brodsky said in part can be traced to a federal Title IX regulation enacted under the Trump administration, which narrowed the scope of cases colleges are required to investigate.

The US Department of Education under President Joe Biden is due to replace the Trump-era rule, but his administration has been postponed issuing a regulatory plan twice. The proposal is now expected this month.

A consequence of those deferrals is students’ eroding faith in procedures intended to safeguard those who have experienced sexual violence, Brodsky said. Advocates for sexual assault survivors deride much of the Trump administration’s rules, which they say dissuade reporting.

Continued delays have other repercussions. Federal mandates that the Education Department review public comments on the draft rule mean it may not take effect until a year or more after the agency releases it. In the interim, campus Title IX coordinators and other administrators are left upholding a regulation they know the Education Department will scrap, even as they brace for changes to come.

Congress also has authority to overturn major regulations, and a new Republican majority, which is possible after the November midterm elections, could pursue this option, depending on when the department finalizes the rule.

Rapid regulatory changes

Over the past 11 years, Title IX has undergone an elaborate policy overhaul, beginning in 2011 when the Obama administration put forth guidance that directed how colleges should investigate and potentially punish sexual violence. Though the guidance was largely rooted in court precedent, it spurred a much more politicized era of Title IX than in previous years. Criticism followed that the federal government pressured colleges to find accused students responsible for sexual misconduct and that institutions were trampling their due process rights.

Former Education Secretary Betsy DeVos seized on the complaints to devise the current rule, which took effect in August 2020, more than a year after she introduced a proposed version. It most notably constructed a judiciary-like setting to evaluate sexual misconduct reports, and it enabled accused students and their accusers to cross-examine the other side through advisers.

Though DeVos’ rule has been subject to many legal challenges, courts have almost entirely preserved it. That’s it except for one provision that colleges during the hearings could not consider statements made by parties or witnesses who did not subject themselves to cross-examination.

Biden on the campaign trail had promised to unravel the current regulation and formally announced in June 2021 the administration would rewrite it. Initially targeting an April 2022 release date for the draft rule, the Education Department has twice pushed back its publication and intends to issue it this month.

Title IX will reach its 50th anniversary on June 23, the date it was enacted in 1972. It historically has sought to ensure sex-based equity in academics and athletics. The Biden administration is reportedly eyeing an expansion of those protections to transgender students.

Why the delays?

Possible inclusions in the regulatory proposal that will prove controversial — like new safeguards for transgender students — might partially explain the Education Department’s delay, said Jake Sapp, Austin College’s deputy Title IX coordinator and compliance officer, who tracks legal matters concerning the law.

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