President Biden’s Executive Order Affecting Title IX
The executive order directs the Secretary of Education to provide the findings of the review to the Director of the Office of Management and Budget within 100 days. The order also directs the Secretary of Education to issue new guidance as needed regarding the implementation of the May 2020 Title IX Regulations to ensure its consistency with governing law and to “consider suspending, revising, or rescinding—or publishing for notice and comment proposed rules suspending, revising, or rescinding” agency actions inconsistent with Biden’s policy. The Secretary of Education is also directed to consider taking additional enforcement actions, appropriate and consistent with applicable law to enforce the President’s outlined policy.
While this executive order makes no changes to the current Title IX regulations, it sets into motion the process to make those changes that President Biden suggested he would make during his campaign. A number of things could happen from here. One option would be a full notice and comment rulemaking process, as was completed to create the current regulations; this is a very lengthy process to implement change, but the change would likely be more lasting. This is the route the previous administration chose and it took from September 2017, when the first Title IX action was taken to May 2020, when the final rule was published. Another potential route would be for the Department of Education to issue guidance, such as Dear Colleague Letters, as the Obama administration did. This could reinterpret provisions of the current regulations, but generally guidance has no lasting impact. Another possible route would be for the Department to leave most of the May 2020 Rule in place, but revise some of the provisions to be more in line with President Biden’s policy. This route could target some provisions that the Department of Education finds are not in line with the policy, while maintaining the general processes that Districts have been using following the August 14, 2020 implementation date.
If your District is seeking Title IX training, contact one of our attorneys to learn more about our in-person, remote, and on-demand Title IX training options. Watch our upcoming newsletters for updates as we keep a close eye on updates from the Department of Education.