Title IX Final Rule on Sex-Based Discrimination Submitted for OIRA Review

The Department of Education submitted the “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance” final rule to the Office of Information and Regulatory Affairs (“OIRA”) for review on February 2, 2024, according to a government website.

The final rule is expected to undo many of the changes made in the 2020 final rule.  The new final rule has been delayed multiple times since the publication of the draft rule in July 2022.  The final rule was originally expected to be published in May 2023, but the Department of Education pushed that date back to October 2023 after receiving an exceptionally large number of comments during the public comment period.  It was subsequently delayed again, with a new anticipated publication date of March 2024.

Although the final rule has been submitted to OIRA, it still may not meet the expected March 2024 publication date.  According to Executive Order 12866, OIRA has 90 days to complete its review, but that timeframe may be extended.  Interested parties can request to meet with OIRA during its review.  Given the high number of public comments received during the comment period for the draft rule, there may also be significant interest in meeting with OIRA regarding the final rule.  It is therefore likely that the OIRA will not complete its review in time for the final rule to be published by March 2024.

The further in the year publication occurs, the more difficulty schools will have implementing the new rules for the 2024-2025 school year.  The final rule will not take effect for at least 30 days from publication, but the Department of Education may allow longer for schools to meet the requirements.  The 2020 final rule was published in May and took effect August 14, 2020.  The Department of Education stated in the preamble to the 2020 final rule that it believed 60 days would be sufficient time for schools to come into compliance with the regulations “[i]n the ordinary course,” but allowed 90 days due to the exigent circumstances arising from the COVID-19 national emergency.  The current administration, however, may respond differently to concerns about the time needed to implement the changes or having the changes take effect during the middle of a school year and allow a longer period for schools to come into compliance with the new final rule.

The Department of Education is reportedly still reviewing the rule regarding transgender students’ participation in sports and has not yet submitted it to the OIRA.  It too had an anticipated publication date of March 2024, but is even more unlikely to meet that timeframe.

These regulations will have significant impact and school’s Title IX processes and procedures, as well as students’ rights.  There will likely be confusion regarding which rules apply during the transition.  It is especially important during this time for a student facing accusations of a Title IX violation to seek the advice of a knowledgeable Washington Title IX defense attorney to protect their rights and education.  If you are the subject of a Title IX complaint or other sexual harassment or misconduct investigation, contact Blair & Kim, PLLC, by calling (206) 622-6562 to set up a consultation.


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