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Will Title IX rules change under Biden Administration?

December 7, 2020

The Office of the Title IX Coordinator has received numerous questions about what we expect given the outcome of the 2020 presidential election.  We don’t have any “insider information” about who President-Elect Biden will select as the Secretary of Education, but we have read the news articles many of you have also read in which President-Elect Biden has referred to ending the federal Title IX regulations issued by Secretary DeVos.

We anticipate that the federal Title IX regulations will, again, change; however, the same Notice-and-Comment Rulemaking procedure utilized by the Department of Education led by Secretary DeVos will likely need to be employed. The Notice-and-Comment Rulemaking procedure is time consuming. The Department of Education under Secretary DeVos—after expressing its intent to change federal Title IX regulations in September 2017—issued its notice of proposed rulemaking (NPRM) in late November 2018 and accepted comments until January 30, 2019. Over 124,000 comments were received, and it took the Department of Education until May 6, 2020, to respond to each of the comments and issue its final rule which was officially published on May 19, 2020. Thus, the formal Notice-and-Comment Rulemaking procedure from start to finish was approximately 18 months.

It is also possible that rather than utilize Notice-and-Comment Rulemaking, Congress may be able to act to change the Title IX regulations. Congress’s ability to take that approach will likely be dependent on what occurs in the U.S. Senate, which will—in part—be determined by the upcoming run-off elections in Georgia. Even then, as long as the filibuster exists, there would be a sufficient number of Republican senators to prevent the Senate from voting on changes to Title IX regulations.

We have read and heard, like many of you, that the Department of Education’s Office for Civil Rights may not enforce the new/current federal Title IX regulations that went into effect August 14, 2020. Even if this becomes the case, the regulations would remain law and would be enforced by courts, should any educational institution be sued by an individual complainant or respondent. To that end, the University of Washington will be required to comply with the 2020 federal Title IX regulations so long as they remain codified and effective law in the Code of Federal Regulations.