DeVos Title IX Regs- The Battle Continues

By Prof. Justine Dunlap 

Ostensibly, September 2017, when the Department of Education withdrew “Obama-era guidance” concerning the implementation of Title IX regulations, was the start of battle timeline. After these documents were withdrawn, stakeholders awaited the proposed Title IX regulations with varying levels of anticipation or dread. Those arrived in November 2018, to both praise and gnashing of teeth. Next came the comment period, wherein more than 124,000 comments were logged. There followed speculation as to what the final regulations would be as well as speculation as to when they would be released. December 2019 seemed likely. December 2019, January 2020, February 2020, Corona Pandemic, March 2020, Corona Pandemic, April 2020, Corona Pandemic, May 2020—final regulations issued during this global crisis that has hit schools very hard. More praise or gnashing of teeth. A week later came the inevitable lawsuit challenging the regulations, whose current effective date is August 14, 2020. So everyone has come out of their corners swinging. And the battle will rage on.

In some ways, this is a familiar battle. New administrations produce new regulations or rescind current ones.  It is but one proof of the phrase that elections have consequences. That it is the common course of things makes it no less critical for the stakeholders involved. However, the handling of sexual misconduct cases/Title IX enforcement at institutions of higher education has never fallen into the category of “it ain’t broke, don’t fix it.” Both complainants and respondents have sued institutions for the handling (or alleged mishandling) of Title IX complaints. Much ink has been spilled about high profile Title IX cases at IHE’s that have been handled abysmally.  Thus the criticism that schools are not well equipped for this.

Time will tell whether the regulations will go forward as they were issued on May 6^th. But regardless of that outcome, it is unlikely that the new regulations will be what survivor groups want. The new regulations, as they now stand, contain mandates but also degrees of flexibility. It is important for those who can, to step forward to assist schools as they work to implement these regulations in the best way possible in this strange new world.