In our last post, we looked at the likelihood of a quick and easy overturning of the Title IX rules after Biden's Inauguration. Although Biden stated he'd remove them if he won the presidency, the actual process of doing so is significantly more complicated. The Title IX changes that Betsy DeVos and the Department of Education instituted in August still elicit a lot of controversy. However, schools will need to continue to follow the guidance or potentially face legal ramifications for not offering all of the protections offered under the law.
So, how could Biden address the changes in a manner that is faster than the length process DeVos took to issue hers, through lawmaking? Here are a few of them, with a brief overview.
There are two possible ways that Congress could overturn the Title IX regulations. First, if the two Georgia seats that are up for the runoff election in January are won by Democrats, the Democrats will gain control of the Senate (and hold control of the House). They could attempt to pass legislation that requires schools to follow specific procedures when they hold their Title IX proceedings, or they could attempt to amend the current legislation that has the same effect. The only caveat to this is that potentially, the Republicans could filibuster the legislation, and it might never actually make it to the President to be signed.
The second way that Congress could address the Title IX regulations would be through a mechanism called the Congressional Review Act (or CRA). The CRA was signed into law by President Bill Clinton in 1996, under House Speaker Newt Gingrich. The law allows Congress to review any new federal regulation that a government agency issues, within 60 legislative days. The CRA has only been used 17 times, since 1996, and of those, 16 were under the Trump administration, to overthrow legislative items from Obama's administration. At this point, it's unclear whether or not the Title IX rules will fall within the necessary window, due to COVID-19's impact on legislative days.
Informal Guidance or Nonenforcement
We spoke briefly before about informal guidance. Nonenforcement of the Title IX regulations could take shape in several ways. Additionally, nonenforcement is a common technique that past Presidents have used to remove the teeth from policy they are not fans of. The Department of Education might remove any penalties for non-compliance, i.e., perhaps schools would not have to worry about losing federal funds for failing to follow DeVos' guidelines. However, the problem with this approach is that it does not protect colleges and universities from lawsuits brought forward by students who allege that they did not receive their due process.
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