The Department of Education’s new Title IX regulations, which have now been officially published, run to over 550 pages of fine print in the Federal Register or over 2000 pages in regular font. Few people have the time or knowledge necessary to identify the most important parts of the regulations, let alone read the entire document from start to finish. Without context about the rule-making process, it can be difficult to understand why the regulations are structured the way they are. But understandable or not, the regulations have significant ramifications for students and educational institutions subject to Title IX’s prohibition on sex discrimination in education. This post breaks down the different parts of the regulations, which parts have legal effect, and why.
Laws passed by Congress often leave details up to the agencies designated to enforce them – sometimes very important details. Title IX itself is relatively brief, providing that “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,” with a limited set of exceptions. It is left primarily to the Department of Education to interpret and effectuate this non-discrimination mandate.
Congress has established a formal process under the Administrative Procedure Act for agencies like DOE to follow in order to generate legally binding rules and regulations to interpret and supplement its statutes. First, an agency must give notice of generally what it proposes to do or the basic subject of possible regulation. After this notice is published, a period of public comment begins, during which any group or member of the public can provide input, support, opposition, or suggestions regarding the proposed regulations. For a significant rule-making like this one, in which more than 124,000 comments were submitted in a period of a few months, the agency must take many months, or even years, to review, consider, and grapple with the comments received. At the end of the process, the agency publishes a “Final Rule” that consists of two main parts: the “preamble,” which is the vast majority of the document, and the regulations themselves, which in this case consist of the last 7-plus of the total 554 Federal Register pages.
The regulations, tucked in at the end, are the operative language, which is almost as legally binding as if Congress itself had passed it into law. It contains amendments to existing Title IX regulations (which had not been updated in many years) and some new provisions to be added to the Code of Federal Regulations. Because the regulations have legal effect, a reader should start with them to get a sense of the basic impacts and requirements. Then, go back and refer to the preamble on points or issues that are most important or confusing.
The preamble to regulations explains what the agency (in this case, the Department of Education) has tried to do and why it did so. It contains broad summaries of the comments received, broken down by many different subjects and provisions down to minute details or word choices, and it includes responses to the comments – why certain suggestions were adopted, others were not, and what changes were made in response to still others. The Administrative Procedure Act requires such discussion in order to provide some transparency to what would otherwise be a black box of agency decision-making. The preamble is designed to show that the agency has carefully considered the regulations and the feedback it received. An agency that tries to issue a rule without full deliberation, or with obvious holes in its logic, risks having part or all of the rule struck down if a court views it as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” the main standard set for court challenges under the Administrative Procedure Act. Such a challenge has already been brought by the ACLU on behalf of several advocacy groups, claiming that the regulations allow educational institutions to avoid responsibility for dealing with sexual harassment in several different ways. The Attorneys General of several states, including Massachusetts, have also sued to block the regulations, asserting that the regulations are inconsistent with Title IX, arbitrary, and procedurally improper. Other groups or individuals may also bring suit in attempts to invalidate the regulations, for overlapping or different reasons, or in a different court in the hope that one of the challenges will succeed.
In addition to being a necessary part of the rule-making process, the preamble also comes into play as the regulations are interpreted and applied in the future. If the regulations are ambiguous in a certain situation, the preamble can be an important guidepost for a court trying to interpret them. Under current law, the courts grant “Auer deference” to an agency’s reasonable interpretation of its own regulations, unless the interpretation is plainly wrong or contrary to the regulations themselves. While the Supreme Court has been inching away from this type of formal deference in recent years, the preamble should continue to have significant weight in understanding the regulations, since it is an in-depth discussion issued at the same time as the regulations. Where the regulations are unclear, the preamble is the primary source of further discussion to clarify the issue.
However, the preamble cannot anticipate or answer every question, and sometimes it creates new areas of uncertainty. For instance, the new Title IX regulations have already generated confusion in areas such as the application of cross-examination requirements to speech-based sexual harassment and the oddly-constructed hearsay rule to be applied at sexual harassment hearings. The states’ lawsuit also identifies areas where they claim the preamble is inconsistent with the regulations; for example, the regulations allow institutions to create rules for Title IX proceedings as long as they apply equally to both sides, but the preamble states that institutions cannot adopt rules of evidence other than the relevance criteria established in the regulations. If the preamble is inconsistent with the regulations, the regulations prevail. If the difficulties of interpretation remain even in light of the preamble, the Department can issue supplemental guidance to express its views (like with its blog post on speech-based harassment) – but unless that guidance goes through the full notice-and-comment process, it is not legally binding, and is readily subject to revision in the future. Thus, the Obama Administration’s interpretation of Title IX’s requirements, as embodied in the 2011 Dear Colleague Letter and 2014 Q&A concerning sexual violence, was quickly cast aside by the Trump Administration’s 2017 Q&A on campus sexual misconduct after a new president took office. (In contrast, to amend or repeal a regulation, an agency must go through the entire months-long notice-and-comment process again.) The farther an agency gets from the regulations themselves, the more likely a court is to disagree with its interpretation. The publication of these regulations is a starting point to a new chapter in Title IX interpretation. The Department of Education, and ultimately the courts, will undoubtedly have much more to say going forward.
This post is part of multi-part series by Zalkind Duncan & Bernstein’s Title IX team analyzing the significant revisions to the U.S. Department of Education’s Title IX regulations that were issued in May 2020 and are intended to take effect on August 14, 2020, which can be found here. Links to our other posts in this series can be found here.
If you are involved in a Title IX proceeding at your school, college, or university, and would like to speak to one of our Title IX lawyers about your case, please contact us at (617) 742-6020.