Biden is President-Elect. Can We Just Ignore the Regs Now?
Authored by Brett A. Sokolow, J.D., Chair, TNG & President, ATIXA
It has been a week! We now know that Joe Biden is the President-Elect of the United States of America. There will still be some legal wrangling, and nothing is set in stone until the electors vote and their result is certified in December. But, assuming this outcome is maintained, you can now likely ignore the turd that is Executive Order 13950 with impunity. But, what about the Title IX regs? Well, we suppose that ignoring them is an option.
But, that’s nothing new. You’ve always had the option to ignore them. Plenty of schools are already. The question is whether you’re willing to accept the consequences of that decision. If so, compliance is a choice. If not, you need to comply. So, to make an informed decision, you need to know what the consequences are.
In just 70 days (plus or minus), Betsy DeVos will be a billionaire dilettante again. If you ignored the regs, what could OCR do? Between now and January 20, 2021, perhaps OCR could bring or continue enforcement actions that are underway, but the mass exodus from ED has already begun. They’re mostly busy looking for new jobs or packing.
The career civil servants need to be directed to come after you, and their new Biden-appointed supervisors aren’t going to do that based on the current regulations. Even if OCR were to enforce, you could drag it out and appeal. There is no way for OCR to issue a 305 notice of adverse enforcement action within 70 days, and even then that would have to be referred to the courts, so you’re probably pretty safe on that front.
The problem is the courts. Deprive respondents of their regs-based rights, and they will sue. Trump-appointed judges and others who value due process over victim’s rights will use the regulations as the basis of enforcement through litigation, though exactly how that will work remains to be tested. Do you want to be the test case? The actual risks associated with this path are game theory at its best. Maybe you’ll face a TRO. There are worse things; it’s temporary. Could President Biden’s ED act to rescind the regulations before a permanent injunction would be implemented? That would stop judges from enforcing the regs. Litigating to trial could take two years. By that time, Biden’s administration will have acted to at least rescind the regs, if not replace them, right? That would moot the lawsuit. So, you have to decide whether fending off some lawsuits is a reasonable price to pay for liberating your campus or school from the regulations?
Of course, President Biden won’t rescind the regs personally. That will be done by the Secretary of Education. Which will be who? There are no clear front-runners. Donna Shalala is unemployed, suddenly. And 80 is the new 60. Just ask Nancy Pelosi. Or, Lily Eskelsen Garcia? John King? Jim Shelton? Our friend Walter Kimbrough? Patricia McGuire? Michael Bennet? Tony Evers? Freeman Hrabowski? Anyone want to bet on Linda Darling Hammond? What about the obvious wild card Jill Biden?
How long will it take the Biden transition team to vet and select a nominee? How long will it take the Senate to confirm? If Mitch McConnell remains majority leader, will he block Cabinet appointments? How long might it be until a Secretary of Education is in place, builds a new team, and works through his/her/their priorities until Title IX hits the top of the list? It could be a year. ATIXA expects many colleges and schools will maintain their compliance with the regulations until then, but we also expect some loosening over time as signals are issued from the Biden administration and the Department of Education about how they’re going to play this. What will change?
An informal poll of the ATIXA Title IX experts came up with these top ten targets:
- Relief from direct cross examination by an advisor (cross-examination is not going anywhere, but we expect a lessening of the rigid regs requirements)
- Removal of the nonsensical exclusionary/hearsay rule regarding “statements”
- Revocation of the confusing rules on relevance v. directly related evidence
- Two ten-day review periods likely collapsed into one period
- Formal complaint requirement will be reversed
- Hearing requirements for at-will employees will be limited
- Hearings will only be required when some form of separation is on the table, and the definition of hearing will be broader and less formal
- Mandated dismissals removed
- Broad retaliation protections rolled back, especially as applied to respondents
- Removal of any necessity for two processes
We do expect there will be some general counsels who evaluate the risk and advise their schools and districts to move away from the regs to a best practices model (ATIXA’s Process B?) immediately. We can’t and won’t advise you to do so yet (and some circuit courts of appeals won’t allow it), and we don’t advise you to ignore the regs without first consulting your attorneys. Doing the right thing by adopting a best practices model may wind up being a very defensible position going forward. ATIXA will have its eyes on ways to effectively balance the rights of complainants and respondents, and how we can help you to do so as the rules for Title IX likely shift again in the coming years.
If we had to prognosticate, we’d guess that fairly early on, the Biden administration will rescind the 2020 regulations, and implement another new Dear Colleague Letter/Q&A style approach, like what ED did in 2017, to fill the gap. Simultaneously or soon thereafter, ED will announce a process to issue new regulations under the APA (which will then take 1 year to 18 months). The DCL won’t bring back 2011, but will likely use a framework that modifies the current regulations per our above laundry list. This is the mostly likely scenario, but don’t write off a Title IX Restoration Act in Congress, especially if the Senate goes blue after the Georgia runoff elections in January.
As always, ATIXA will keep you informed on what we know, every step of the way.