On March 8, 2021, the Biden Administration published an Executive Order on “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.” In short, the EO requires the U.S. Department of Education to reassess how it directs college campuses to investigate sexual violence – specifically, the 2020 Title IX Rule, 85 FR 30026 – as well as other regulations related to Title IX.
What is Included in the Executive Order?
The Executive Order directs 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, and including discrimination on the basis of sexual orientation or gender identity. This review is to be provided to the Director of the Office of Management and Budget within 100 days. The review includes the 2020 Title IX Rule and any agency actions taken pursuant to that Rule.
The EO also requires the Department to review existing Title IX guidance and issue new guidance as needed. The Secretary is instructed to consider suspending, revising, or rescinding – or publishing for notice and comment proposed rules – any agency actions that are inconsistent with the Biden Administration’s policies.
Additionally, the Secretary is directed to consider taking enforcement action to address intersecting forms of prohibited discrimination that can affect the availability of resources and support for students who have experienced sex discrimination and to account for the significant rates LGBTQ+ students are subject to sexual harassment. The Secretary is also tasked with taking action to ensure that educational institutions are providing appropriate support for students who have experience sex discrimination and that school procedures are fair and equitable for all.
What Comes Next?
As directed, the Department will now begin the task of reassessing the current Title IX regulatory framework and issue their review to OMB within 100 days. While it is unclear what will be included in such a review, the EO does make clear that the Biden Administration is strongly considering action on the 2020 Title IX Rule. If it chooses to take regulatory action, the Department has several options available to it.
First, the Department could begin a full notice and comment rulemaking. While this is the most thorough process – and the path taken by the Trump Administration – it also is the most time consuming. The previous administration took their first Title IX-related action in September, 2017, published a proposed rule in November, 2018, and finalized the rule in May, 2020 (with an effective date of August 14, 2020). A similar timeline would not publish a new Biden Administration final rule until February 2024.
Second, the Department could take a piecemeal approach that would leave most of the 2020 Rule in place and provide the opportunity for Secretary Cardona to revise certain provisions to be more consistent with the Administration’s policies. While this would not be the wholesale change that some interest groups may want, it could modify the more controversial aspects of the 2020 Rule and would not be as time and resource intensive as a fully rewritten rule.
Third, the quickest way for the Department to revise its Title IX rules would be to issue “sub-regulatory” guidance in the form of Dear Colleague Letters. Such guidance, which does not require any public comment or input, could re-interpret certain provisions of the 2020 Rule, but not may not have the lasting impact that the Administration might prefer.
For more information on the 2020 Title IX Rule, see Duane Morris’s review of the regulation here. For more information on this topic and others, please contact, Jonathan Helwink, Katherine D. Brodie, any of the attorneys in the Higher Education Group or the attorney in the firm with whom you are regularly in contact.
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