Dive Brief:
- The U.S. Department of Education plans to issue its proposed Title IX regulation governing how colleges and K-12 schools should investigate and punish sexual violence in May, and not this month as it said previously.
- Catherine Lhamon, who leads the Education Department’s Office for Civil Rights, said in December the agency intended to make public this month its draft rule on Title IX, the cornerstone federal law banning sex-based discrimination and sexual misconduct in educational settings.
- But with April drawing to a close, a department spokesperson told Higher Ed Dive that to ensure the agency “is able to devote thoughtful and appropriate attention to these issues,” its new timeline to release the draft rule is next month.
Dive Insight:
Observers attuned to Title IX-related issues suspected the Education Department might delay its regulatory proposal as it had scheduled meetings with various entities through mid-May to discuss it.
The draft rule represents a rewrite of one proffered by former Education Secretary Betsy DeVos, which took effect in August 2020. The DeVos rule created a judiciary-like method of evaluating reports of sexual violence on college campuses, notably allowing an accused student and their accuser to cross-examine each other through an adviser of their choosing.
It also shrank the scope of cases colleges need to investigate, prompting ire from sexual assault survivors and their advocates, who thought the regulation licensed colleges to disregard these problems.
DeVos, however, in issuing the rule responded to a chorus of accusations from due process activists. They argued the Education Department for years had pressured colleges to find accused students responsible for sexual assaults, under the threat of revoking institutions' funding for not complying with Title IX regulations. This in turn disregarded accused students' rights, they said.
The debate broke out in full after the Obama administration put new emphasis on sexual violence prevention, issuing guidance in 2011 and 2014 that directed how institutions should address these issues.
President Joe Biden is expected to take up that mantle. He was deeply involved as vice president with the former administration’s Title IX sexual misconduct response.
The Education Department expects to publish its draft rule in the Federal Register next month, which at that point will start a public comment period, typically 60 days. The agency may make changes based on feedback, and a rule will then be finalized.
“As is true with any undertaking that impacts the civil rights of Americans, this regulatory process raises important and complex issues that require careful consideration as well as the urgent need for action,” an Education Department spokesperson said Wednesday.
Reportedly, the new draft regulation will protect gay and transgender students from sex-based discrimination. That idea drew criticism from 15 Republican state attorneys general who threatened to sue the Biden administration over the forthcoming rule. The attorneys general urged the White House to halt the regulatory process for issuing a new rule.
Sexual assault survivor groups last August urged the Biden administration to expedite changes under Title IX and publish a draft rule by Oct. 1, 2021 — a call the Education Department did not heed.
