By: Brett A. Sokolow, J.D., and Kayleigh Baker, J.D.
If you’re a Latin pedant, you’ll want to use the traditional ‘see-nay de-ay,’ but the common American English pronunciation used in legislative machinations is ‘sigh-neh dye.’ Perhaps it ought to be “sign or die” to be more accurate to its implications. So, why am I going on about Latin legal speak? Sine die is relevant to Title IX work because new Title IX regulations are expected, perhaps in March 2024. 2024 is also a presidential election year, and thus, sine die could be relevant to whether the new regulations ever go into effect based on the workings of the Congressional Review Act (CRA).[1]
Many of us learned “How a Bill Becomes a Law” from Schoolhouse Rock, but it never taught us how a regulation acquires force and effect of law. That’s not nearly as entertaining, even when animated. Here is a brief lay explanation that can provide context. Agencies are charged with implementing rules called regulations to effectuate laws. When an agency drafts regulatory changes or new regulations, it goes through a series of review processes internal to the government and publicly, as required by the Administrative Procedure Act (APA). When an agency publishes a final rule, Congress can use the CRA to overturn the regulations.
The 2024 Title IX regulations are, as of this writing, winding their way from the Department of Education’s (ED, not DOE) Office for Civil Rights (OCR) to the Office of Information and Regulatory Affairs (OIRA, pronounced oh-eye-rah) in the Office of Management and Budget (OMB, pronounced oh-emm-bee). OCR has targeted March 2024 to release the Title IX Final Rule. This date has some people nervous because, depending on the timing, next year’s Congress may also review and “claw back” or rescind the regulations based on the CRA’s lookback provision.
A Democrat administration drafted the current Title IX Notice of Proposed Rulemaking (NPRM), and assuming the regulations are released and go into effect in late 2024, a Republican-controlled House, a Democrat-controlled Senate, and a Democrat-controlled presidency will review it. Since the Democrat-controlled Senate seems unlikely to rescind the regulations and President Biden could veto any such action, the Final Rule would likely not be rescinded and would take effect according to the timeline outlined by the OCR.
However, some of us think the March 2024 target date set by the OCR is unrealistic and that a June 2024 release is more probable. This timeline is all a little bit out of the OCR’s hands, and we’ve explained why in another blog here. This potential June 2024 release is why Title IX practitioners may want to practice pronouncing sine die.
The CRA says that Congress will complete its review of regulations before adjourning for the session. If it can’t, the next Congress (here, the 119th that will convene in January 2025) will be allowed to “lookback” and review the regulations.[2]
If Congress and the presidency are controlled by those who oppose implementing the new Title IX regulations (likely Republicans), then the CRA’s lookback provision could result in the regulations being clawed back. But is this likely to happen?
The CRA’s lookback provision will only give the next Congress a right to review this year’s regulations if the current (118th) Congress does not have the specified time to review the regulations. That time is based on when Congress adjourns sine die (essentially, Congress’ last day of business during the year). The CRA requires that the House be given at least 60 “legislative days” and the Senate at least 60 “session days” to review any new regulations before sine die adjournment.
So, when is the cut-off this year? We don’t know. The number of legislative/session days not only varies yearly, but the cut-off is usually not the same in the House as in the Senate, as it is a moving target based on the legislative agenda. Additionally, how days are calculated in the House and Senate differs and does not necessarily equate to calendar days (in fact, a legislative day in the House can equate to multiple calendar days in some circumstances). Ultimately, the House and Senate Parliamentarians determine these calculations.
Historically, the House’s calendar has dictated the key date for the CRA’s lookback provision.[3] In past years, this date has usually fallen sometime in June or July but has occurred both earlier and later in the year on occasion. During the 117th Congress, the lookback provision would have been in place for Final Rules that were sent to Congress after July 29, 2022. Absent some attempt by either Chamber of Congress to manipulate the number of legislative or session days, we can estimate when this date might be for the 118th Congress, which will probably fall around July 2024.
So, let’s look at this from a practical timeline perspective, assuming that I am correct and that the Final Rule will be published in June 2024.
If these predictions are correct, it seems straightforward, with no real CRA concerns. However, the longer the OCR takes to finalize the rule, the closer it comes to running into the lookback provision outlined by CRA – especially since July is just an estimate and the OCR won’t know when there are only 59 legislative or session days left until it‘s too late.
That could lead to a situation where the field will be in limbo, where we must comply by sometime in August but will have no real sense of whether the regulations would be rescinded until after the November elections. This could mean a lot of work to revise policies and procedures, only for institutions to be forced to return to the 2020 regulations if the 119th Congress rescinds the Final Rule.
This is precisely why Title IX administrators are urging the OCR not to cut it close. Practitioners do not want to wait anxiously to see whether a Congress opposed to the regulations is elected and, if so, whether there’s a chance a rescission could be vetoed. Nor do they want to depend on the Senate or House Parliamentarian to determine whether the 118th Congress had at least 60 days to review the regulation.
The bottom line is that the OCR doesn’t want nearly four years of its work on the Title IX regulations to be reversed by the next Congress. There is no doubt that the OCR is aware of the CRA risk and the need to avoid it, but the longer the OCR takes, the more nervous we become. Although the OCR is currently at the mercy of the OIRA timeline (and OIRA has not even opened its meeting calendar as of this writing on 1/23/24), once the regulations are returned to the OCR (probably around April 2024), the OCR will need to finalize the regulations, considering any OIRA feedback. The last time we received new regulations on Title IX (in 2020), the last step of OCR finalization after the OIRA review took about two months. Could the OCR speed up that final 60-day period? Perhaps, but the OCR will need to act quickly once OIRA closes its review — regardless of when — if there is any hope of finalizing these regulations before June 2024.
We suggest that the OCR make strenuous efforts to make haste. 20,000+ Title IX professionals eagerly await these changes with readiness to make them by the end of summer 2024.
[1] 5 U.S.C. §§801-808
[2] (2022). The 118th Congress and the Congressional Review Act “Lookback” Mechanism. Congressional Research Service.
[3] Pérez, D. R. (2019) Upcoming CRA Deadline Has Implications for Regulatory Oversight by Congress.