14 May2020

New Title IX Regulations Released

U.S. Department of Education logo

On May 6, 2020, the U.S Department of Education, under the leadership of Secretary Betsy DeVos, released the final rule for the Title IX regulations—also known as the final regulation. Built from the law that prohibits sexual discrimination at federally funded institutions, this update to the Code of Federal Regulations (CFR) has been contentious since the process started in November 2018. AACTE joined nearly 60 organizations on a letter led by the American Council on Education pointing out challenges and questions with the proposal during the public comment period in January 2019. Overall, the Department received over 124,000 public comments that were reviewed prior to the determination of the final rule.

The review and update of the regulations were initiated due to a response to guidance issued by the Obama Administration in 2011 leading to an increase in civil lawsuits, mostly from men who were accused of sexual misconduct alleging their rights were violated under the Title IX procedures. The updated regulations are purported to be fair to both the accuser and the accused.

Critical to note is the timing of the release of the final regulation during the COVID-19 national emergency, where our nation’s institutions of higher education (IHE’s) transitioned to complete online learning and the status of classes this fall remains undetermined. Worse yet, the deadline for full implementation for institutions is August 14, 2020.

Areas of change include definitions, jurisdiction, grievance procedures, informal resolution, and the training of decision makers. The regulation creates a far more legalistic procedures, which has been raised as problematic for all involved, including the advisors, victims, and accused perpetrators. In addition, the procedures developed are for students and employees. Thus, faculty and staff handbooks will need to be updated, as well as the potential to have to enter into collective bargaining on the changes required—all by August 14, while campuses remain virtual and classes online. The American Council on Education and the National Women’s Law Center led sign-on letters asking the Department to delay issuing the final rule until at least after the national emergency had ended, preferably after a level of recovery had been reached (AACTE signed on to both letters, please see them here).

While the analysis of the final regulation continues and institutions begin the work of implementing the requirements to be in compliance by August 14, court battles are expected. There is not yet conversation about building a legislative solution, which could include examining the timeline to see if the regulations can be rescinded using the Congressional Review Act (that was used to rescind the teacher preparation program regulations) or through language in a measure expected to pass sometime this year. Stay tuned for additional updates.

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