The Department of Education should not delay releasing the Title IX regulations

April 6, 2020

On March 27, the Office for Management and Budget completed its roughly five-month review of the Department of Education’s proposed regulations on Title IX, paving the way for the regulations to be finalized. Unsurprisingly, prominent opponents of the regulations, who have opposed the proposal at each and every step, have seized on the coronavirus crisis to argue that the pending regulations should be delayed. The Department of Education should ignore these misplaced calls and finalize the regulations as soon as is practicable. 

The classic legal maxim that “justice delayed is justice denied” is applicable here. The status quo with respect to campus Title IX proceedings is unacceptable. Institutions too often harm complainants by sweeping allegations under the rug or by handling their complaints with insufficient care, while the railroading of accused students is also well documented. (The recent OCR findings concluding its Title IX investigation at Pennsylvania State University demonstrate that sometimes a school violates the rights of both parties simultaneously!) Neither of these injustices should be allowed to persist. 

Indeed, some of the same victims’ rights advocates that are calling for the proposed regulations to be delayed are simultaneously arguing that institutions that pause Title IX proceedings during the coronavirus pandemic are “prolonging the trauma” experienced by complainants. Last week, for example, one set of those advocacy groups, including prominent organizations like Know Your IX, Equal Rights Advocates, and the National Women’s Law Center  wrote the following in an open letter to institutions:

[S]chools’ logistical obstacles are not a sufficient justification for forcing students to forgo their right to a prompt and equitable process to address and redress sexual violence and other forms of sexual harassment. Meaningfully enforcing civil rights is not an obligation that dissipates in the face of institutional hardships–even during these unprecedented times.

It’s clear that these advocates think that institutions are capable of dedicating resources toward enforcing Title IX, even in this challenging environment. Title IX coordinators seem to agree. One Title IX coordinator told The Chronicle of Higher Education that his university’s “Title IX office remains fully operational.” Another pointed out that her Title IX office was able to use technology like videoconferencing to proceed. 

If these professionals can figure out how to proceed with the pending cases, surely they can also review their policies for compliance with new regulations and make adjustments accordingly. Moreover, if institutions are going to continue to adjudicate these cases, they cannot cite the pandemic as a justification for continuing ongoing practices that may be violating students’ rights.  

Critics who argue that now is not the time to reform Title IX practices are inherently arguing that even if what institutions are doing is unjust, now is not the time to address these problems. But the proposed Title IX regulations are not the only potential legal authority mandating changes. A growing list of schools are on the losing end of judicial opinions blasting the institutions’ procedures. Does anyone think the pandemic should result in stays in all of those cases? Should we presume that the current world situation should be grounds to stay all judicial orders — even those in other contexts — requiring the government to halt the revision of policies that violate constitutional rights? If not, then why only in this context must this type of institutional actor be allowed to continue unjust practices? 

The latest calls to pause the regulations are nothing more than thinly veiled attempts to delay any changes in hopes that the proposal may yet be derailed by changes in political circumstances. But the moral requirements of justice do not change with the political winds. Indeed, this is most important to remember in times of crisis, when excuses for turning a blind eye to violations of rights are so tempting. Courts and other government actors cannot hide behind the pandemic to justify continuation of abuses. 

The argument for delaying the finalization of the regulations also implies that institutions will have to scramble to revise their policies overnight. This is not true. The proposed Title IX regulations were first published on Nov. 29, 2018, which means that schools have already had nearly 500 days of advance notice of these proposed changes to consider potentially necessary policy revisions. 

Further delay wouldn’t help institutions anyway. The sooner the proposed regulations are finalized, the sooner institutions and their communities will have certainty with respect to what will be expected of them. This clarity will be to everyone’s benefit.