May 22, 2020
In the Final Rule, unlike in the Proposed Rule, the Department has added "severability" language as new sections 106.9, 106.18, 106.24, 106.46, 106.62, and 106.72.
The language states that if any provision of the regulations or its application in a given circumstance is held invalid, the remainder of the regulations shall not be affected. As such, the Department's intent is that if one portion of the regulation were invalidated by a court or otherwise, the rest of the regulation would remain in effect.
These severability clauses apply to both new provisions of the regulations in the Final Rule as well as those that were not otherwise amended by the Final (or Proposed) Rule, such as provisions relating to discrimination on the basis of sex in admission and recruitment. See Final Rule §106.24.
The Department's stated rationale for these provisions is "to make clear that these final regulations are designed to operate independently of each other and to convey the Department's intent that the potential invalidity of one provision should not affect the remainder of the provisions." See 85 Fed. Reg. 30538 (May 19, 2020).
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This document focuses on a summary analysis of the 2020 Final Title IX Regulations’ sections focused on severability. For a full overview of the changes from the Proposed Regulations, see Title IX Text for Text Proposed to Final Comparison and Title IX Summary Proposed to Final Comparison, available at system.suny.edu/sci/tix2020.
The Joint Guidance on the 2020 Title IX Regulations is prepared as a service by in-house and firm attorneys, but does not represent legal advice. The Joint Guidance is compliance advice and no attorney/client relationship is formed with any contributor or their organization. Legal advice for specific situations may depend upon state law and federal and state case law and readers are advised to seek the advice of counsel. The Joint Guidance is available absolutely free pursuant to a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International license (meaning that all educational institutions are free to use, customize, adapt, and re-share the content, with proper attribution, for non-commercial purposes, but the content may not be sold).