Department of Education Delays Final Title IX Rule

In July 2022, the Department of Education (“Department”) proposed Title IX regulations that would undo a number of changes made during the Trump Administration.  The final rule was expected to be released this month. The Department recently provided an update, however, stating that the new anticipated date for the final Title IX rule is October 2023.

According to the Department, more than 240,000 public comments were submitted in response to the proposed regulations.  This is more than twice the number of comments the controversial 2018 proposed regulations received.  Under the proposed rule, sex-based discrimination and harassment would include gender identity, sexual orientation, sex characteristics, sex stereotypes, and pregnancy or related conditions.  Much of the attention around the proposed rule has been focused on the protections based on gender identity and sexual orientation, but there are other significant changes.

Victim advocates and education organizations have raised concerns over the mandatory reporting requirements, which require certain employees to report conduct that may constitute sex discrimination to the Title IX Coordinator.  The American Association of University Professors commented that such requirements negatively affect teaching and advising relationships.  Other commenters noted that the mandatory reporting requirements as written could be confusing to students and would likely discourage victims from seeking help and support.

Another significant change to the Title IX investigation and disciplinary process is the proposed removal of the live hearing requirement.  The American Council on Education commented that it supported the change. The American Civil Liberties Union and the American Association of University Professors each expressed opposition to both the removal of the live hearing requirement and the use of a single investigator model.  Under the proposed regulations, a school may use one person to both investigate a complaint and decide the outcome.  The American Association of Universities, however, supported the flexibility of being able to use a single investigator and decision-maker.

Some commenters expressed concerns about the time needed to implement the proposed regulations.  The American Association of Universities recommended that the effective date for the final rule be no sooner than the start of the academic year one full calendar year after its publication.

The Department has also pushed back the anticipated date for a separate final rule on student’s eligibility for athletic teams, which addresses participation of transgender students in sports.  That final rule is now also expected in October.  According to the Department, the proposed athletics rule received over 150,000 comments.

The Department is simultaneously working on two controversial rules that will make significant changes to Title IX.  A delay until October means the final rules will not even be published until after the start of the next school year.  They may not take effect until the following academic year. Even after the final rules take effect, there is likely to be confusion over which requirements apply to incidents occurring before the effective date when the investigation continues beyond the effective date.

During this uncertainty, it is especially important for accused students to seek the advice of an experienced attorney right away.  The Washington Title IX defense attorneys at Blair & Kim, PLLC, can advise you of your rights throughout the Title IX investigation and disciplinary processes.  We also have significant experience in criminal defense and can be ready to also assist you with any associated criminal matters.  Set up a consultation by calling (206) 622-6562 today.


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