President Biden Issues Executive Order Directing U.S. Department Of Education To Reassess Title IX Rules – Consumer Protection

On March 8, 2021, the Biden Administration published an Executive Order on “Guaranteeing an
Educational Environment Free from Discrimination on the Basis of
Sex, Including Sexual Orientation or Gender Identity.” In
short, the EO requires the U.S. Department of Education to reassess
how it directs college campuses to investigate sexual violence
– specifically, the 2020 Title IX Rule, 85 FR 30026 – as well as other
regulations related to Title IX.

What is Included in the Executive Order?

The Executive Order directs the Secretary of Education, in
consultation with the Attorney General, to review all existing
regulations, orders, guidance documents, policies, and any other
agency actions that may be inconsistent with the Biden
Administration’s policies on discrimination on the basis of
sex, including discrimination in the form of sexual harassment,
which encompasses sexual violence, and including discrimination on
the basis of sexual orientation or gender identity. This review is
to be provided to the Director of the Office of Management and
Budget within 100 days. The review includes the 2020 Title IX Rule
and any agency actions taken pursuant to that Rule.

The EO also requires the Department to review existing Title IX
guidance and issue new guidance as needed. The Secretary is
instructed to consider suspending, revising, or rescinding –
or publishing for notice and comment proposed rules – any
agency actions that are inconsistent with the Biden
Administration’s policies.

Additionally, the Secretary is directed to consider taking
enforcement action to address intersecting forms of prohibited
discrimination that can affect the availability of resources and
support for students who have experienced sex discrimination and to
account for the significant rates LGBTQ+ students are subject to
sexual harassment. The Secretary is also tasked with taking action
to ensure that educational institutions are providing appropriate
support for students who have experience sex discrimination and
that school procedures are fair and equitable for all.

What Comes Next?

As directed, the Department will now begin the task of
reassessing the current Title IX regulatory framework and issue
their review to OMB within 100 days. While it is unclear what will
be included in such a review, the EO does make clear that the Biden
Administration is strongly considering action on the 2020 Title IX
Rule. If it chooses to take regulatory action, the Department has
several options available to it.

First, the Department could begin a full notice and comment
rulemaking. While this is the most thorough process – and the
path taken by the Trump Administration – it also is the most
time consuming. The previous administration took their first Title
IX-related action in September, 2017, published
a proposed rule in November, 2018, and
finalized the rule in May, 2020 (with an effective date of August
14, 2020).  A similar timeline would not publish a new Biden
Administration final rule until February 2024.

Second, the Department could take a piecemeal approach that
would leave most of the 2020 Rule in place and provide the
opportunity for Secretary Cardona to revise certain provisions to
be more consistent with the Administration’s policies. While
this would not be the wholesale change that some interest groups
may want, it could modify the more controversial aspects of the
2020 Rule and would not be as time and resource intensive as a
fully rewritten rule.

Third, the quickest way for the Department to revise its Title
IX rules would be to issue “sub-regulatory” guidance in
the form of Dear Colleague Letters. Such guidance,
which does not require any public comment or input, could
re-interpret certain provisions of the 2020 Rule, but not may not
have the lasting impact that the Administration might prefer.

For more information on the 2020 Title IX Rule, see Duane
Morris’s review of the regulation here. For more information on this topic and
others, please contact, Jonathan Helwink, Katherine D. Brodie, any of the attorneys in
the Higher Education Group or the attorney in
the firm with whom you are regularly in contact.

Disclaimer: This Alert has been
prepared and published for informational purposes only and is not
offered, nor should be construed, as legal advice. For more
information, please see the firm’s
full disclaimer.