Anyone who is researching Title IX or has been accused of sexual misconduct on a college campus in the U.S. has come face-to-face with the often confusing regulatory system. Understanding how regulations are made and how they work is essential if you are dealing with Title IX allegations and want to know your rights.
Congress and Title IX
Congress is comprised of the House of Representatives and the U.S. Senate. It is the government body that creates laws.
One of those laws is Title IX, which was passed in 1972. However, that law is rather scant: All that it says is “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Rather than flesh out the law and outline what was prohibited, Congress punted the issue to the executive agency that would be responsible for enforcing the law, the Department of Education.
The Department of Education's Title IX Regulations
Part of punting responsibility to the Department of Education involved Congress giving the agency power to promulgate regulations that laid out the details for complying with Title IX, and even altering the very requirements of the law.
For example, one of the early regulations that the Department of Education passed was 34 CFR § 106.31(b)(5), which used to prohibit sexual discrimination in federally-funded education systems “in the application of codes of personal appearance.” While the text of the Title IX law said nothing about dress codes in school, the Department of Education decided to make Title IX's edicts apply to them.
These regulations have the same legal effect that statutes passed by Congress have, though they are far easier to change: In 1982, the Department of Education changed course on the dress code issue and rescinded 34 CFR § 106.31(b)(5).
The breadth and scope of an agency's regulations are only bound by the law that enables them. In the case of the Department of Education, Title IX allows the agency to create and enforce any regulation whatsoever, so long as it has to do with sexual and gender discrimination in the field of education.
Problems with the Regulatory System
Authorizing federal agencies to create their own rules and regulations so they can enforce vague Congressional laws has been a common tactic in the past few decades in America. However, the flexibility that it creates is not without controversy or its set of downsides.
One of the most important downsides has been that agencies in the executive branch are woefully prone to political movements, leading to wide swings in policies that drastically alter how certain laws are enforced. The current upheaval in Title IX law is just one example: While the executive branch was controlled by President Obama, Title IX was construed to help alleged victims of sexual abuse, assault, or misconduct on college campuses. Since President Trump has taken control of the executive branch, his appointees have shifted the concerns of Title IX back towards the due process rights of those who have been accused of misconduct.