The U.S. Department of Education continues to lag on finalizing two key Title IX proposals anxiously awaited by district leaders for over three years — and now policy experts say it's likely the department will finalize both this spring, after the department's latest self-imposed deadline of March.
The broader Title IX proposal released in June 2022 would protect LGBTQ+ students under the federal anti-discrimination law for the first time. It would also change Title IX implementation in a way that public education experts say make it more practical for schools, including shortening investigation and resolution timelines.
The second proposal, released nearly a year later in April 2023, would create a framework for transgender students' participation on sports teams aligning with their gender identities.
Both controversial proposals were initially expected to be finalized last May. But a high volume of public feedback on each, which the department is required to review, pushed that deadline twice — first to October, and then again to this month.
However, it's likely the Education Department will miss its latest deadline as well, since the agency has still not cleared a key regulatory hurdle for either rule: getting the White House's green light for release.
The athletics rule remains held up at the department, which has yet to pass it to the Office of Management and Budget, the White House office that reviews regulations prior to their release. The broader Title IX rule, which the department sent to the White House in February, is still sitting with OMB a month later.
"It can take much longer," said Sasha Pudelski, director of advocacy for AASA, The School Superintendents Association. "They can take many months. It's really about how many meeting requests they get, how complicated the rule is."
As part of the review process, OMB's Office of Information and Regulatory Affairs holds meetings upon request with members of the public to discuss the proposed regulations. While OMB has already taken about 30 days on the first, broader Title IX rule, it still has 17 additional meetings to discuss it scheduled for March, as of publication. The last, so far, is scheduled for March 28.
"I don't think anyone thought they were gonna get it [out in] March," said Pudelski about the rules' release.
OMB has up to 90 days to review each rule, with a 30-day extension if needed. When then-Education Secretary Betsy DeVos released the existing 2020 Title IX rule that overhauled the law’s implementation in schools, OMB took all of its allotted review time.
Pressure mounts
Some lawyers and Title IX experts have speculated that the department will finalize the rules by the summer, prior to the next school year.
However, the department is running against another timeline for both the broader Title IX rule and the athletics rule, making a June release tricky.
The Congressional Review Act, which allows Congress to overturn certain federal agency actions, provides federal lawmakers 60 congressional days to rescind or approve a final rule. If that happens, it then gets passed to the president, who can veto Congress' decision and allow the rule to take effect.
However, if those 60 days push past the end of the year, the review period could restart during the next Congress, said Shiwali Patel, who leads policy development and advocacy, litigation and education on gender-based harassment in schools for the National Women's Law Center. In that case, if the new Congress decides to rescind the rules, President Joe Biden may not be in the White House to veto Congress' rescission and allow the rules to proceed.
"There is this looming concern around the congressional relapse, because the Biden administration has to ensure that they are protecting this final rule as fully as possible," said Patel. "And that means protecting against any risks that it could be rescinded by Congress, and then put into place by potentially another administration if Biden doesn't win reelection.”
For Biden to avoid that scenario, the department must get the rules out by the end of April or early May, said Patel.
A Education Department spokesperson said there have been no updates since the first Title IX rule went to OMB last month and confirmed that it's still sitting with OMB. The athletics rule remains under review at the department, which received 150,000 public comments that "must be carefully considered," the spokesperson said.
“The Biden-Harris Administration is committed to ensuring all students are guaranteed an educational environment free from discrimination on the basis of sex," the department said last month.
However civil rights groups are getting impatient and have repeatedly called on the administration to release the rules sooner rather than later.
"They should take this very seriously, and students are counting on them," said Patel.
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