New Title IX regulations have been anticipated since July 2022 when the Biden Administration released a notice of proposed rulemaking in the Federal Register. The Department of Education (DOE) is charged with developing regulations to fulfill Congress’ mandate for sex equity under Title IX.
While previous announcements from DOE’s Office for Civil Rights (OCR) suggested a release of the final Title IX regulations in April of 2023, then May of 2023 and now October 2023, the release date may need to pivot once again. After reviewing the anticipated timeline to get to an “effective date” the DOE is again running late and the release of the new final Title IX regulations may be pushed to spring 2024. The anticipated regulations are expected to bring about substantial changes in the way schools and other organizations handle sexual harassment and sex-based discrimination. In this article, we will elaborate on the expected timeline for these regulations and why we anticipate the new Title IX regulations deadline may be extended, again.
Expected Timeline for Final Title IX Regulations:
As of September 2023, the OCR is revising its initial Title IX regulations draft and is formulating responses to nearly a quarter of a million comments received in 2022. Anticipated next steps include:
OCR finalizes and approves regulations and sends them to the Office of Management and Budget (OMB), specifically the Office for Information and Regulatory Affairs (OIRA) for review.
OMB Review: Before publication, the final regulations will undergo a review by the Office of Management and Budget (OMB), a standard procedure for all federal regulations. This review process generally takes around 90 days but may be extended up to 120 days if needed.
OCR Revisions: Following the OMB review, the OCR will make any necessary adjustments to the regulations in accordance with feedback and requirements.
Publication Date: The DOE will publish the new regulations in the Federal Register.
Effective Date/Compliance Period: After publication, schools and other Title IX-affected organizations will typically have a window of 60-90 days to ensure compliance with the new regulations. This entails updating policies and procedures, staff training, and other necessary changes.
While OCR does not make their rule-making public, the transmission of the OCR regulations to OMB and OIRA will be public, but has not yet happened. Given that the OCR is still revising its initial draft and has not yet finalized and approved their regulations and sent to OMB, the October 2023 will more than likely be extended since the OMB review can take 90-120 days (see #2) in addition to the other steps listed above.
Preparing for the Final Title IX Regulations
Given the effective date will likely be extended to the spring or summer of 2024, this will give schools more time to anticipate and prepare for the new regulations. We recommend schools and organizations take the following proactive steps to prepare:
Legal Counsel Consultation
Initiate discussions, particularly if you reside in a state with legislation that restricts safeguards concerning gender identity. These discussions should focus on how your school or organization plans to address potential disagreements between state laws and federal regulations.
Review and Planning
You'll have to revise your policies and procedures to align with the upcoming regulations. Of utmost importance are updating definitions, adjusting investigation and decision-making requirements, and formally tracking data on sexual violence and harassment.
Establish a dedicated team or task force responsible for overseeing the implementation of the new regulations. It's essential to set timelines for discussions and decision-making and to identify which aspects of your policies, procedures, literature, websites, and other resources will require updates. Additionally, you can begin the planning phase for retraining your community on these new policies and procedures.
In contrast to the highly detailed 2020 regulations, the newly anticipated regulations will offer greater flexibility for your investigations and decision-making. As a result, there are many aspects to consider when it comes to ensuring compliance and making choices that align with your community's culture, resources, and institutional requirements and objectives. Therefore, there is ample room for discussion on these matters.
Your district’s Title IX responsibilities will likely remain under the existing 2020 regulations for the 2023-2024 school year. If you’ve decided to wait to train your staff and designated leaders until after the new regulations are released, you may need to re-think your strategy. It is imperative that you maintain compliance with the 2020 regulations until the new regulations come into effect – which may not occur until spring or summer of 2024. To achieve this, it is essential to refocus your team on staffing, training, and resource allocation to effectively address the 2020 regulation requirements. This will ensure that your team is well-prepared, adequately trained, and is in compliance when responding to sex-based concerns, complaints and rumors.
In conclusion, the anticipated Title IX regulations are poised to usher significant changes to the way educational institutions and organizations handle matters related to discrimination, sexual harassment, and student participation. OCR’s expected timeline of October 2023 has not yet been met, suggesting that the deadline will likely be extended to the spring or summer of 2024. By taking proactive steps and staying informed, schools can ensure readiness for compliance when these regulations come into effect. For more information and updates on Title IX regulations, schools can refer to the DOE's website and consult professionals, like McGrath Training Solutions, with expertise in sexual harassment and misconduct compliance and policy implementation.