Just a few short weeks ago, college students were in the midst of their spring semester, contemplating spring break, finals, graduation, and athletic conferences. At the same time, members of higher education institutions anticipated the release of the Department of Education’s (DOE) final version of the proposed Title IX regulations. As of the beginning of the year, the DOE sent a finalized version of the regulations to the White House Office of Management and Budget (OMB), indicating that the regulations were in the “Final Rule Stage.” The Office of Information and Regulatory Affairs (OIRA) website indicates that the meetings on the proposed regulations concluded as of March 27, 2020.
However, along with businesses across the world, college and university campuses in the United States were turned inside out by the arrival of the novel coronavirus, also known as COVID-19. In a matter of weeks, institutions of higher education transitioned from in-person instruction to remote instruction, and many students departed campus indefinitely. Graduations were postponed or converted into online ceremonies.
Given the unprecedented changes in institutions of higher education over the past few weeks, Pennsylvania Attorney General Josh Shapiro, joined by eighteen other attorneys general, submitted a letter to the DOE and the OMB requesting suspension of the rulemaking process for the proposed regulations while the nation’s education institutions respond to the national emergency caused by COVID-19, and until institutions resume their normal operations. Attorney General Shapiro cited the fact that more than 1,140 colleges and universities are temporarily closed, affecting more than 14.5 million students.
Attorney General Shapiro stated, “with school resources already stretched thin, now is not the time to require school administrators, faculty, and staff to review new, complex Title IX regulations, revise their schools’ policies in response, and communicate these changes to students and parents.” Attorney General Shapiro argued that finalizing the proposed regulations at this time would add significant confusion to ongoing Title IX investigations that have already been interrupted. Attorney General Shapiro specifically cited to the proposed requirement for live hearings with all parties and witnesses, stating such a requirement would be impossible and unsafe in the current environment.
Three senators, Patty Murray, Elizabeth Warren, and Kirsten Gillibrand, sent similar correspondence to the DOE, expressing their strong opposition to the DOE’s plan to release the final rule. Citing the COVID-19 crisis, the senators noted that it would be “wholly unacceptable for the Department to finalize a rule that fundamentally will change the landscape of how schools are required to respond to incidents of sexual harassment and assault.” The letter urged the DOE to focus instead on helping educational institutions navigate the urgent issues related to COVID-19.
The American Council on Education (ACE) submitted correspondence on behalf of over thirty organizations that represent institutions of higher education to the DOE requesting that the DOE delay further action on the proposed Title IX regulations. Similar to the letter from the attorneys general and the senators’ letter, the ACE letter notes that institutions do not currently have resources or capacity to implement the regulations at this time due to the COVID-19 pandemic.
As of now, the DOE has not responded to these communications. We at Cohen Seglias continue to monitor the status of the proposed regulations and are available to assist with any Title IX needs.