The final Title IX regulations on sex discrimination from the U.S. Department of Education may be released this spring after all. The Department initially announced the final rule would be issued in May 2023. But at the end of May, the Department explained it needed more time due to the significant number of public comments received regarding the proposed changes to the Title IX regulations. The new anticipated release date was October 2023. But October came and went with no new Title IX rule.
The Department did not officially announce an updated anticipated release date. But, the release date for the Title IX sex discrimination rule was updated by the Office of Information and Regulatory Affairs (OIRA)[1] on the Reginfo.gov website to March 2024 (see here). Also, importantly, the Department sent the final rule to OIRA on February 2, 2024. This is a critical step in the regulatory review process, and by sending the rule last week, the process for issuing the final rule sometime this spring likely is still on track. Review of a final rule can take up to 120 days; there is no minimum amount of time.
However, it is important to note that the Title IX athletic participation rule was not set to OIRA at the same time as the Title IX sex discrimination rule. The Title IX athletic participation rule also was delayed by the Department from May 2023 to October 2023 to March 2024 (see here). Because the Title IX athletic participation rule has not been sent to OIRA, it’s possible the release for that rule could be further delayed.
In the meantime, school districts must continue to follow the current Title IX regulations, which went into effect in August 2020.
Additionally, we are monitoring two cases currently pending before the U.S. Supreme Court on the concept of deference to federal agency interpretation of laws (“Chevron deference”) and its potential impact on the anticipated final Title IX rules (and federal regulations more broadly).
We will continue to keep you apprised of Title IX developments. Contact Jennifer Rosenberg or any HLERK attorney with your Title IX questions.
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[1] The Office of Information and Regulatory Affairs (OIRA) is part of the Office of Management and Budget (OMB) and, among other things, reviews federal draft proposed and final regulations.
