The current administration is making a concerted effort to implement changes to civil rights regulations through a method known as direct final rulemaking. This approach allows for the modification of established protections under Title IX, Title VI, and Section 504 without the usual notice-and-comment period that is typically required for new regulations. Advocates are raising concerns about the implications of this strategy.
Interestingly, the Department of Energy (DOE) is at the forefront of these regulatory changes, which is unusual given that such regulations are typically associated with educational institutions. However, experts note that agencies have the authority to regulate entities that receive federal funding. Approximately 300 higher education institutions rely on DOE funding and would be subject to these new regulations, as highlighted by Ray Li, a policy counsel at a civil rights organization.
Direct final rulemaking was first introduced by the Environmental Protection Agency in the early 1980s to facilitate the rapid passage of non-controversial regulations. This process has since been utilized by various agencies to enact thousands of regulations. Under this framework, a brief comment period is established, and if no significant adverse comments are received, the rule automatically takes effect.
In mid-May, the DOE quietly released around a dozen direct final rules, including several that pertain to equal rights in education. Advocates argue that these changes are too significant and contentious to be processed through this expedited method, which is generally reserved for minor adjustments. The comment period for these rules is set to close soon.
One of the proposed rules aims to amend Title IX regulations concerning sports teams, specifically removing a provision that allows students to try out for teams of the opposite gender if there is no equivalent team available. This change appears to target transgender student athletes, with DOE officials asserting that the existing rules overlook fundamental differences between the sexes and impose undue burdens on local governments.
Critics, particularly women’s rights advocates, argue that this regulation could adversely affect many cisgender women and girls. For instance, a significant number of high school girls participated on boys’ baseball teams in the previous season due to the absence of girls’ teams. If the proposed rule is enacted, these schools would no longer be obligated to allow girls to join those teams.
“The rationale behind this change perpetuates harmful stereotypes that associate masculinity with strength and femininity with weakness,” stated Shiwali Patel, a director at a women’s law center. “These stereotypes have historically been used to exclude women and girls from athletic opportunities, which Title IX was designed to combat.”
Another proposed rule focuses on Title VI and seeks to eliminate long-standing regulations that prohibit practices with a disparate impact on individuals based on race. This legal doctrine has been crucial in ensuring that federal funding does not inadvertently support discriminatory practices.
Concerns have been raised regarding the administration’s use of the direct final rulemaking process for such significant changes. Advocates and legal scholars are questioning the appropriateness of this approach, suggesting that it may be an attempt to bypass public scrutiny.
The previous administration had also attempted to modify Title IX regulations to prevent blanket bans on students participating in sports consistent with their gender identity. This proposal garnered substantial public feedback, leading to its eventual withdrawal.
Legal experts have noted that the DOE’s issuance of these direct final rules may be a strategy to avoid drawing attention from opponents. While it is legal for any agency providing funding to educational institutions to enforce Title IX, it is uncommon for agencies other than the Department of Education to issue related regulations.
Another proposed rule seeks to remove accessibility standards for newly constructed buildings under Section 504, which prohibits discrimination based on disability. This move has surprised many advocates, as there has been no significant push against these standards.
Several of the direct final rules have already received thousands of comments, many of which likely qualify as significant adverse comments. Legal experts argue that the sheer volume of feedback indicates a misapplication of the direct final rulemaking process.
Furthermore, rules that receive significant adverse comments are typically required to either be withdrawn or undergo the standard rule-making process. However, the DOE has indicated that it may attempt to reintroduce these rules even if they face opposition.
It remains unclear whether the Department of Justice was involved in the review of these proposed changes, as such regulations typically require their approval. Advocates are concerned that this is part of a broader deregulatory effort aimed at undermining civil rights protections.
Civil rights organizations are urging the public to submit comments on the proposed rules, although there is skepticism about whether the administration will acknowledge these comments. Advocates believe that creating a record of public opinion could be beneficial in potential legal challenges against the regulations.