On the 50th anniversary of the enactment of Title IX, the U.S. Department of Education released proposed new regulations for Title IX policies. For the most part, these new regulations reverse regulatory changes made during the Trump administration.
The Biden administration insists the new regs will “restore crucial protections” that had been “weakened.” Commenters have their own opinion on the efficacy of the proposed regulations, with over 235,000 formal comments filed during the 60-day comment period.
So, do the proposed regulations represent a step forward or backward?
Overview of changes
The deceptively simple words in Title IX of the Education Amendments Act of 1972 have been augmented by numerous regulations and judicial interpretations over the decades. While the aim is to protect students from sex-based discrimination, many worry that the regulatory efforts to right or prevent wrongs go too far and infringe on the due process rights of those accused of Title IX violations.
During the Trump administration, the Office for Civil Rights spent nearly 18 months reviewing less than 125,000 public comments before issuing new final regulations that resulted in significant changes. With almost 90% more comments to review this time around, it will be interesting to see how long it takes the department to issue final rules about key issues they are considering, such as:
- How colleges are required to investigate reports of sexual assault
- Whether colleges are required to hold live hearings before issuing decisions
- Protections for LGBTQIA+ students
- The definition of sexual harassment.
While some commenters object that the proposed rule changes go too far in one direction, others insist they do not go far enough.
Live hearings and cross-examination
One of the most significant controversies regarding the proposed regulations centers on the types of proceedings colleges must hold to hear Title IX complaints. The new regulations allow schools to hold separate private meetings with complainants and respondents instead of live hearings with the opportunity for cross-examinations. Supporters of the change assert that the disciplinary hearings required under current rules are too much like adversarial courtroom proceedings. Many say that allowing colleges to establish less formal, non-confrontational processes will save money and encourage victims to proceed without fear of repercussions.
However, other commenters expressed concerns that eliminating live hearings and allowing colleges to use the same body to investigate and judge the validity of complaints violates the due process rights of students accused of violations.
Burden of proof in sex discrimination and misconduct
Controversy continues about how much a complainant must prove to win a case alleging that they have been subjected to sexual discrimination, harassment or assault. The proposed rules would generally establish a “preponderance of evidence” standard in most but not all cases, so a student need only to prove that it was “more likely than not” that the discrimination occurred. The current rules provide a choice between the preponderance of evidence and clear and convincing evidence standards.
Critics of the change say the clear and convincing standard is necessary to protect the respondent’s rights, and they point out that it is still less than the “beyond a reasonable doubt” standard used in criminal cases.
Gender identity and sexual orientation
The proposed regulations expand the anti-discrimination protections of Title IX to include gender identity and sexual orientation when it comes to college programs or activities, except athletics. The department has delayed ruling on the highly controversial issues related to participation in sports programs.
Even without addressing athletics, the expansion of protections generated numerous forceful comments. Those in favor assert that the new rules will improve the safety and wellbeing of LGBTQIA+ students and resolve equality issues that are currently being addressed on a costly case-by-case basis in the courts. Opponents of the expansion allege that by requiring schools to allow participation in programs based on gender identity, the new regulations actually violate the Title IX mission of providing equal access to education benefits on the basis of sex. They also argue that the proposed changes exceed the department’s statutory authority and would chill free speech rights on campus. For example, the definition of sexual harassment will be expanded such that students could be investigated for not using certain pronouns or using incorrect pronouns that do not correctly reflect the gender with which a person identifies.
Are we moving forward or backward?
While the new regulations are not yet final, the final regs are expected to track closely with the proposed version. Whether you are a complainant or a respondent regarding any number of explicit proposed provisions in the regulations, each side would argue the provision is either moving toward a brighter future or repressive past—any provision that makes it more difficult to file a complaint (such as requiring a formal complaint under the current regs) makes it harder for complainants (repressive past) and easier for respondents (brighter future); and keeping the standard at the preponderance of evidence versus raising it to clear and convincing, is easier for complainants (repressive past) and more difficult for respondents (brighter future).
The one certainty is that when schools implement the new regulations, those who are unhappy with the results will turn to the courts for clarification and possible nullification. It will be interesting to see how the courts respond.
Felice Duffy is a Title IX attorney with Duffy Law based in New Haven, Conn. and former federal prosecutor.
Related Posts:
Colleges as Courtrooms? How Administrators Can Adjust to New Title IX Regs
Title IX Changes Could Add Exposure for Universities, Discourage Victims from Coming Forward
Providing Transparency to the Title IX Process
Illegal Procedure? Title IX and Sexual Assault
Fighting Campus Sexual Assault
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