As of today, new final regulations on Title IX promulgated by the Biden administration take effect — but only in some places. This confusing situation has been created by a series of lawsuits that collectively have enjoined the U.S. Education Department (ED) from enforcing the rules in at least 21 states.
Some of the suits were brought by joint groups of states attorneys general, while another was initiated by an organization called Young America’s Foundation and Female Athletes United. The latter impacts institutions across the country. Further clouding the situation, some state officials have told colleges not to comply with the controversial rules.
For those states where ED has been legally barred from enforcing the new regulations, there is uncertainty about what policies institutions should follow, and whether the previous regulations promulgated by the Trump administration, which took effect in 2020, remain in effect. At an ED webinar planned for this morning, Secretary Miguel Cardona and Assistant Secretary for Civil Rights Catherine Lhamon are expected to state that institutions that have been enjoined from enforcing the new rules should continue to comply with the Trump rules, which absent the legal action would have formally sunsetted.
A range of issues under Title IX
Much of the heated discussion over the Biden regulation has focused on regulatory policies addressing transgender students, and many public policymakers and press reports have presented the regulations as only addressing that topic. However, the regulations go far beyond that issue and alter the previous regulations promulgated by the Trump administration in many basic respects, including the definition of discrimination on the basis of sex — which Title IX is explicitly designed to preclude — as well as the employees who are covered and required disciplinary procedures.
The American Association of Community Colleges (AACC) has been involved in this regulatory process since the beginning. Association staff commented on the proposed rules via a written statement to ED and a formal oral presentation to the Office of Management and Budget, and also provided a detailed regulatory summary to members.
ED has made a variety of resources available to institutions to facilitate compliance. However, in many places the practical reality is that, at the time, it is as if these new rules had never been advanced.
Future political developments have the potential to alter the Title IX landscape, especially if former President Donald Trump is elected a second time. In all likelihood, Trump would act to reinstate most, if not all, of the portions of regulations that ED has just modified, including the controversial requirement that Title IX disciplinary proceedings include a live hearing with cross-examination by the parties’ representatives.
AACC is interested in any compliance issues or other considerations facing institutions.
