Ed Dept says it will issue a new Title IX regulation

Dive Brief:

  • The U.S. Department of Education has formally announced plans to issue a new regulation governing Title IX, the law prohibiting sexual violence on K-12 and college campuses. 

  • The department indicated in an online regulatory database that it would publish its proposed rule in May 2022. 

  • The move was expected, as President Joe Biden pledged to undo the rule crafted by former Education Secretary Betsy DeVos that was widely seen as giving students accused of sexual misconduct more safeguards. 

Dive Insight:

DeVos’s rule, which took effect in August 2020, was loathed among advocates for sexual assault survivors. It transformed colleges’ Title IX processes into judiciary-style procedures requiring both parties to be able to cross-examine the other through a surrogate. It also limited the sexual violence cases institutions would need to investigate, including many off campus. 

Biden on the campaign trail promised to strike down the rule and has taken steps to do so. He released an executive order in March calling for a review of the Title IX regulation. This month, the Education Department held five days of virtual hearings to accept feedback on the administration’s approach to Title IX.

The American Council on Education, on behalf of more than 40 higher education organizations, criticized the current regulation in written comments prepared for the hearings. ACE President Ted Mitchell wrote that “colleges and universities are not courts, nor should they be,” taking aim at the tribunal settings the rule mandates. 

Mitchell wrote that the regulation was too prescriptive and had the result of micromanaging colleges’ processes. He noted, however, that the groups appreciate that the regulation permits informal resolutions for some cases. 

Wednesday was the 49th anniversary of Title IX being signed into law. Education Secretary Miguel Cardona said in a statement that day that Title IX is “the strongest tool we have to protect every student’s right to equal access to educational opportunities free from sex discrimination.” The department recently interpreted the law’s protections as extending to gay and transgender students. 

The department is likely developing the draft rule now, said Jake Sapp, Austin College’s deputy Title IX coordinator and compliance officer, who tracks legal matters concerning the law. After a public comment period, the agency will publish its final version.

Issuing the draft rule sooner would speed up the timeline for delivering a final regulation, Sapp said.

Know Your IX, an activist group for survivors, on Twitter drew attention to the department’s plans to release the proposal in May 2022. “We can’t sit around and wait for Ed to correct the damage of the Trump administration,” it wrote in a tweet.

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