The U.S. Department of Education announced it will unveil new proposed Title IX rules in April 2022, one month earlier than planned.
The earlier release will likely not affect how districts operate for quite some time, as the proposal will kick off a comment period before the final version is implemented. In the meantime, rules published under the Trump administration by former U.S. Secretary of Education Betsy DeVos remain in effect.
The department said in a statement that its shortened timeline shows it is “deeply committed to ensuring that schools are providing students with educational environments free from discrimination in the form of sexual harassment.” However, advocates say more could be done.
“One month in a two-year plus process is not a significant change,” said Brett Sokolow, president of the Association of Title IX Administrators, in an email. “It’s a move in the right direction, as sooner is better than later. But, there are often delays that occur in the regulatory process down the road, and the Department has the right to grant itself extensions.”
Fatima Graves, CEO and president of the National Women’s Law Center, said the department could have chosen to drop the current rule entirely in the interim. Her organization, along with 115 others, asked the department in September to reconsider enforcement of parts of former President Donald Trump’s Title IX amendments.
At the time, organizations said they were “deeply concerned” about the department’s May 2022 deadline for new proposed rules and asked the Biden administration to release proposed changes by October 2021. The Biden administration could take until February 2024 to implement changes, or more than two school years from now, given that Trump’s Title IX final rules took nearly 21 months to be implemented from the time changes to the rule were first proposed, the letter said.
The Trump administration rules, which took effect during the pandemic and which critics said strained district resources, overhauled and significantly increased reporting and investigative responsibilities for districts notified of sexual harassment and assault claims. They also made optional live hearings between student victims and the accused optional, rather than the previously required formal hearings.
However, the rules also left a loophole legal experts said allowed districts to “pass the trash” or “pass the problem,” coined phrases that refer to a problem in the K-12 education system where alleged sex offenders jump from one district to another when allegations or rumors of their misconduct surface.
Sokolow estimates the department could spend a year or more reviewing and responding to the notice and comment period after April 2022. This school year, and likely the next, will not be impacted by any proposed changes, said Meghan Glynn, an education attorney specializing in Title IX.
“We’re still a long ways away from new regulation,” Glynn added. “But I think it does signal from the Biden administration that they are paying attention to this issue, they are taking it seriously, and that they intend to act within Biden’s first term. “
In the meantime, districts still have to abide by the rules put in place by DeVos during Trump’s term.
It is possible, however, that the department would release a Dear Colleague letter, which is sometimes used to set unofficial policy, signaling how it will interpret the rule currently in effect, according to Glynn. It’s already done something similar for Title IX protections of LGBTQ students through a notice of interpretation published in June.
“Absent that, we’re still operating under the current system,” Glynn said.