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It Looks Like We Won’t Have Final Title IX Regulations by October 2023… Now What?

by Brett A. Sokolow, Esq., TNG Consulting

Read the latest on the 2024 Title IX Regulations in my recent piece published in December 2023 entitled OCR Revised the Title IX Regulations Final Rule Publication Date to March 2024… Is That Date Realistic?

If you’re like most of us in the Title IX field, the deeply technocratic nuances of federal regulation bore you to tears. I share your ennui. Please consider this your least complicated primer on how and when we may get the final Title IX regulations.

As you know, the Department of Education is empowered to craft regulations to fulfill Congress’ mandate for sex equity under Title IX. The Department (ED, not DOE, which is Energy in DC-speak), through its Office for Civil Rights (OCR), published draft rules in July of 2022 (called an NPRM or Notice of Proposed Rulemaking). Have we racked up enough acronyms yet? No wonder this topic is so dense!

That publication of the draft initiated a public comment period because the Administrative Procedure Act (APA) requires public comment as part of agency rulemaking. 244,000 comments were submitted. OCR is supposed to respond (in aggregate) to all comments within the preamble to the regulations when it publishes the final rule. The final rule is the updated version of the July 2022 draft that takes into consideration the comments submitted and usually adjusts the text of the draft rule accordingly. From publication, OCR usually gives the field 60-90 days to comply, and then enforcement begins.

So, where are we now? OCR has completed its draft and is working on the redraft, the preamble, and responses to nearly a quarter of a million comments. OCR has also announced October 2023 as its revised deadline (it initially targeted May 2023, but that came and went) to release both the Title IX regulations and the final rule related to Title IX athletics gender equity. ED will likely release both jointly as one document.

According to an Executive Order (EO 12866), ED should transmit the final rule to the Office for Management and Budget, specifically to the Office for Information and Regulatory Affairs (OIRA, pronounced Oh-Eye-RAH). Per EO 12866, OIRA is required to hold meetings with representatives from affected agencies and other interested parties to review the final rule, and then OIRA provides feedback to OCR.

OIRA’s review is generally upwards of 90 days from receipt of a proposed regulation by an agency. However, an additional 30 days can be granted, making the OIRA review timeline a maximum of 120 days. While the internal regulatory machinations of OCR are not visible to the public, we will know when OCR transmits the rule to OIRA because that transmission will be recorded here. That transmittal has not happened yet. OIRA will likely hold 100 or so meetings with various groups, return the rule to OCR, and then OCR will take time to implement the changes requested by OIRA. That process took about two months for the last round of regulations issued in May 2020. So, where does that leave us?

It likely means that publication of the final rule will occur 4-6 months from the transmission date. If the final rule were transmitted today as I write this at the end of August 2023, the earliest we’d have a final rule published in the Federal Register is around January 1, 2024, and the latest would be around March 1, 2024.

After transmittal, OCR announces an effective/enforcement date, typically about 60 days from the publication date. However, in 2020, the period extended to nearly 90 days (from May to mid-August). Keep in mind that OCR is not bound by any rule that would prohibit it from extending this window even further. For instance, it could drop the final rule on March 1 with a deadline of May 1, August 1, or any other date it chooses. While such lengthy periods are uncommon, OCR might opt for this approach to provide schools ample time during the summer to revise policies and procedures and to train staff on the new rule. Alternatively, it could release the rule in March (mid-to-late spring) but delay enforcement until sometime in the summer. At present, that seems to be the most plausible scenario, as the clock has yet to start on OIRA’s review, and there are two rules in line for review, not just one.

Does that timeline create concerns that could be further impeded by the national election? Perhaps. A new Congress in 2025 could repeal the final rule, but the timeline I laid out above is unlikely to trigger that eventuality. If the rule is delayed beyond the timeline, the repeal via the Congressional Review Act (CRA) could be possible.

Anticipate a final rule by spring 2024, followed by implementation in summer 2024, if the rule is transmitted to OIRA near the end of August. If not, expect an additional 4-6 months from the eventual OIRA transmission date before the final rule is published. Allow for a minimum of 60-90 days from there to the compliance/enforcement deadline. During this period, more than 20,000 recipient schools across the U.S. will need to update their policies and procedures. We have about a year to prepare.

What to do now?

As we await the final rule, here are some proactive steps you can take:

  • Begin conversations now (especially if you are in a red state with a law limiting protections related to gender identity) with your legal counsel about how your school or institution will reconcile potential conflict between state law and federal regulations.
  • Proposed regs will allow your school to limit participation of non-binary, trans, transitioning, or intersex student-athletes. Does your community want to impose such restrictions? Are such restrictions mandated by state law or athletic conference rules? Begin stakeholder conversations now to pave an easier (not easy!) path to whatever approach you take once the regs are in effect.
  • You will need to revise policies and procedures substantially to comply with the new regs. Most importantly, there are decision points regarding resolution formats, mandated reporters, decision-maker(s), and the formality of your investigations. While you may need to adjust plans for last-minute changes to the final rule once it drops, we have a good idea of where OCR is headed. Use a committee, Title IX team, task force, or other mechanisms to engage stakeholders in the change process, set timelines for consideration, and identify what policies, procedures, literature, websites, etc. will need to change. You can also start the planning process for retraining your community on the new policies and procedures.
  • While the 2020 regs were very prescriptive, the 2024 regs allow for a lot of latitude. Thus, there is much more to discuss with your community about how you will comply and what choices will best support your culture, resources, and institutional needs/goals.
  • Develop a roll-out plan. How will you communicate these changes to your community? What pushback can you anticipate, and how can you build a coalition around these changes before implementing them to ensure a smooth transition?
  • You can start to address barrier analysis requirements now. Here’s a tip on how to do so.
  • You still have about a year under the current 2020 regs regime. You must be compliant with 2020 until 2024 takes effect. Thus, rededicate your team to staffing, training, and resourcing to meet the needs created by the 2020 regs so that you are well-trained, prepared, and professional in addressing all complaints reported. Early signs show that complaint volumes are already up for the fall of 2023. Keeping on top of resolution timelines will help you to ensure that there aren’t too many complaints that start under the 2020 rules but conclude under the 2024 rules. OCR will give us a cut-off date in the final rule, but we encourage you to keep up with the caseload, which will ease that transition whenever it comes.

Summary Timeline:

  • July 2022: Proposed regulations released
  • Unknown date: Submission of regs to OIRA, expected in fall 2023
  • 3-4 months of meetings/review by OIRA, anticipated completion by January 2024
  • 1-2 months of redrafting/finalization by OCR, anticipated completion between January to April 2024
  • Publication of final rule 4-6 months after referral to OIRA, expected in March or April 2024
  • Enforcement/compliance deadline to be set 60+ days after publication, estimated to be in the summer of 2024

ATIXA is the leading industry association for Title IX compliance and best practices. We’ll guide our members through the 2024 transition with comprehensive trainings, materials, and model policies. Join ATIXA today to ensure you have our full support and shortcuts as the regs transition occurs. Contact us today with any questions.