Representatives Initiate Investigation of Title IX Rulemaking

Representative Lisa McClain, Chairwoman of the Subcommittee on Health Care and Financial Services, and Representative Virginia Foxx, Chairwoman of the Committee on Education and the Workforce, recently initiated an investigation into the Department of Education’s proposed Title IX regulations. Their November 16, 2023, letter to Department of Education Secretary Miguel Cardona expressed concerns about changes to due process protections as well as inclusion of gender identity discrimination within the definition of “sex discrimination.” They are investigating whether outside groups had improper influence over drafting the proposed rules.

The letter stated that the proposed changes would “eviscerate the safeguards that ensured due process for all students.” The letter points to the proposed reinstatement of the “single-investigator model” as an example and states that federal and state courts had ruled against universities more than half the time in lawsuits filed under the 2011 policy when this model was previously in effect.

The letter also alleges that the proposed inclusion of “discrimination on the basis of gender identity” in the definition of “sex discrimination” would “harm women and girls across the country.”

According to the letter, the Committees on Oversight and Accountability and Education and the Workforce “are deeply concerned with the Department’s decision” to amend the Title IX regulations.  The letter requests certain documents to assist in the Committees’ investigation into whether outside organizations “played an outsized role” in creating the proposed regulations.  The request includes communications between certain individuals within the Department of Education and external organizations or individuals regarding the May 2020 final rule, specifically including any communications related to the final rule’s due process and grievance provisions.  The letter also requests communications, agency records, and other documents relating to Title IX and gender identity.  The letter asks for the documents and communications to be provided no later than November 30, 2023.

The proposed rules, “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” were published on July 12, 2022.  The original comment period closed on September 12, 2022. The final rule was originally anticipated in May 2023.  On May 26, 2023, however, the Department of Education posted an update on its official blog providing an anticipated date of October 2023 for the final rule.  Now October 2023 has passed without publication of a final rule or an updated timeline from the Department of Education.  It is unclear at this point if this new investigation will lead to further delay in the publication of a final rule.

Although the 2020 final rule remains in effect, there will be some level of uncertainty until the new final rule is published.  Schools continue to face significant pressure to act in response to allegations of sexual misconduct and in some cases may violate the accused student’s rights in doing so.  A student accused of sexual misconduct should contact an experienced Washington Title IX defense attorney right away.  Blair & Kim, PLLC can help you navigate your school’s Title IX process and fight to protect your rights during the investigation, any potential disciplinary proceeding, and beyond.  We have extensive criminal defense experience and can also assist in any associated criminal matter.


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