The Biden Administration: Undoing the Title IX Regulations
While the Biden Administration has said the Title IX
regulations will quickly end when he’s elected—it’s not that simple. While they
can tell schools that there will be no penalty from OCR or a potential loss of
federal funds if they fail to comply with the 2020 Title IX regs, it’s not as
though that would protect schools against lawsuits. If, for example, a student
feels that their due process rights has been violated by a district’s decision
to not follow the current Title IX regulations then it is likely that the
respondent would be successful in Court since the law is still on the books.
Congress is not likely going to be of much help to the
Administration particularly a Republican Senate. While there is still
significant momentum to reauthorize the Higher Education Act, where these
regulations are based, and Congress has a role in shaping the underlying law
that the regulations are based on, it will take considerable renewed time and
debate on Capitol Hill to jump start new legislation and get bipartisan
agreement on this contentious issue.
Regardless of what Biden does, there are still two pending
lawsuits challenging the Title IX rule that could strike it down. Also unclear
is what the Biden Administration’s response to the litigation would be and how
that would impact the litigation.
So, in the meantime legal experts advise districts that the
safest legal course will be to continue to follow the regulations until we have
a definitive pause in the regulations and a course for what districts should
follow instead.