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.