Less than 50 days into his presidency, President Biden signed an executive order on March 8, 2021, directing the U.S. Department of Education (DOE) to conduct a review of the controversial Title IX regulations (the Rules) that were spearheaded by the previous Secretary of Education, Betsy DeVos, to determine if they align with the policies of the Biden administration.
This executive order signals the importance of Title IX to the new administration. President Biden’s directive in the executive order demonstrates that his administration is taking steps to dismantle policies, regulations, and agency actions put in place by the Trump Administration that do not align with his policies and goals.
DeVos’ Title IX Rules were controversial and statutorily required widespread changes to previous DOE guidance. The Rules, which were released on May 6, 2020 with a compliance deadline of August 14, 2020, put significant pressure on educational institutions to comprehend the new Rules and conduct major revisions to their existing Title IX policies in the midst of the COVID-19 pandemic. Despite challenges lodged by multiple state attorneys general regarding the Rules’ substance, as well as requests to extend the compliance deadline, the Rules remained in effect.
Biden’s executive order requires new Secretary of Education, Miguel Cardona, in consultation with the U.S. Attorney General, to conduct a broad review of the Rules and related guidance within the next 100 days.
After completing the review and issuing a report, Secretary Cardona may issue new guidance that “consider[s] suspending, revising, or rescinding—or publishing for notice and comment proposed rules” or agency actions that are inconsistent with the tenents of the new administration.
Changes to the Rules are likely, based on comments made by then-candidate Biden during his campaign trail. Modifications may come in the form of new “Dear Colleague” letters issued by the DOE’s Office of Civil Rights (OCR), which had been the manner in which OCR communicated significant policy changes to educational institutions before DeVos’ rulemaking went into effect. The current Rules took nearly two years to finalize. It is unclear if another lengthy rulemaking process—including a period where public comments will be accepted and considered—will be undertaken prior to any revisions.
Cohen Seglias’ Title IX Group will continue to monitor any changes to the Title IX Rules and OCR policies. Our attorneys stand ready to assist you with making any necessary modifications to your existing Title IX policies, procedures, and training. Please contact any of the attorneys in the Title IX Group for questions or assistance.