by Brett A. Sokolow, Esq., TNG Consulting and ATIXA
[Revised and updated from my previous blog post in August].
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), through its Office for Civil Rights (OCR), published draft rules in July of 2022 (called an NPRM or Notice of Proposed Rulemaking).
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 on the regulations related to sex discrimination and harassment, with another 120,000 subsequently submitted on the proposed OCR athletics gender equity rule. OCR has now effectively combined NPRMs and is expected to issue final rules on both simultaneously in one regulatory revision.
So, where are we now? OCR has completed its draft and redraft, the preamble, and responses to nearly 360,000 comments. OCR initially targeted May 2023, then announced October 2023 as its revised deadline to release both the Title IX regulations and the final rule related to Title IX athletics gender equity. Now, ED’s Regulatory Agenda has been revised to show March 2024 as the release date target, but we’ll discuss below why you should still take that date with a grain of salt. The regulations are coming, no doubt, but the question is when.
According to an Executive Order (EO 12866), ED must 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 generally takes 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 know that transmission to OIRA is now poised to take place (Dec 2023/Jan 2024), and OIRA will likely open meeting registration early in 2024. OIRA will hold 100 or so meetings with various groups, return the rule to OCR, and then OCR will take time to implement any changes requested by OIRA. That post-OIRA process took OCR about two months for the last round of regulations issued in May 2020. That likely means that publication of the final rule will occur 4-6 months from the OCR-to-OIRA transmission date. If the final rule were transmitted today, as I write this in December 2023, the earliest we’d have a final rule published in the Federal Register is around April 2024, while the latest would be around June 2024. That’s why ED’s announced March timeline seems unrealistic.
Is there a scenario in which March is realistic as opposed to April/June? It’s possible but not likely. There are some changes the Biden administration made to EO 12866 in 2022 that are designed to expedite the OIRA process and prevent duplicative meetings with the same stakeholders, but it’s pretty easy to game that system. It depends on how many meetings stakeholders request with OIRA. While OCR may be in a rush to hit the March date, OIRA is not and does not need to adhere to OCR’s timeline. OIRA meetings are a watchdog function, not cross-agency collaboration. If, by some miracle, the meetings are quick or few, OCR could still hit the March target, but we’re still thinking the compliance deadline would be August, regardless.
Given that loading up OIRA with meetings will slow the release of the regulations, you need to consider if you want to meet with OIRA. For that reason, ATIXA may elect to forego a meeting, but we will confer with our Advisory Board on that first. If you have concerns related to cost or the projected economic impact of the rule, that’s the primary reason to meet with OIRA. OIRA isn’t a sounding board for all manner of regs-related concerns, though many who request meetings use it for that purpose. Opponents of the regulatory changes will probably try to use the OIRA process to slow the final rule, hoping that by dragging it into the fall, it will run into a Congressional Review Act issue where the new Congress can claw it back in January 2025. However, if a Democrat is elected President, any repeal by Congress would be vetoed. These OIRA meetings are supposed to be about OMB assessing whether OCR correctly forecasts costs and economic impact of the new rule (see forecasts starting on p. 633 of the NPRM). So, we suggest only meeting with OIRA if you need to.
We remain hopeful that ATIXA’s long-planned Denver Symposium in June 2024 will be well-timed to host all of you to get you certified on the new regulations. Still, we will watch the timeline carefully to assess that. If not, we’ll schedule other options to ensure you are ready by August. We’re also already planning regs-based certifications in October 2024 at ATIXA’s 13th Annual Conference in Philadelphia so that you will have plenty of opportunities for training. Keep tabs on our upcoming opportunities here.
So, anticipate a final rule by late spring 2024 and implementation in summer 2024. Here is the most probable timeline in summary:
- January 2024 – OIRA posts meeting slots and begins to meet with stakeholders. If that timeline holds, OIRA would not be done with meetings until the end of March at the earliest, and if there is a 30-day extension beyond the 90 days, that would be April 2024.
- March/April 2024 – OIRA returns the rule to OCR.
- March/April-to-May 2024 – OCR addresses any OIRA concerns. That could take 1-3 months, based on prior history. Because of the election, OCR will hasten this process, but even a 30-day turnaround still misses the March target by most calculations.
- May/June 2024 – Publication of final rule in the Federal Register – May/June seems much more likely than March/April.
- August 2024 – Final compliance deadline. We still predict August 2024, based on this timeline, about 60-90 days from the publication of the final rule.
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 with any questions.