The Biden Administration proposed new Title IX rules on Thursday that set guidelines for how colleges and universities handle sex discrimination, expand protections for transgender students and widen the scope of schools’ responsibilities to investigate sexual misconduct investigations.
The proposal would override the federal Title IX guidelines set by former Education Secretary Betsy DeVos that went into effect in fall 2020. Those rules strengthened the due process rights of accused students in campus sexual assault cases, narrowed the definition of sexual harassment, increased the level of evidence required to find a student responsible in disciplinary proceedings and required schools to hold “live hearings” with cross-examination of students, similar to a courtroom.
The new proposal came Thursday on the 50th anniversary of Title IX, the federal law that prohibits schools receiving federal funding from discriminating against individuals on the basis of sex.
“Over the last 50 years, Title IX has paved the way for millions of girls and women to access equal opportunity in our nation’s schools and has been instrumental in combating sexual assault and sexual violence in educational settings,” U.S. Secretary of Education Miguel Cardona said in a statement. “As we celebrate the 50th Anniversary of this landmark law, our proposed changes will allow us to continue that progress and ensure all our nation’s students — no matter where they live, who they are, or whom they love — can learn, grow, and thrive in school.”
The new regulations clarify that students and employees will be protected from all forms of sex discrimination, including based on “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity,” strengthening protections for LGBTQI+ students.
The proposed changes were prompted by President Joe Biden’s executive order in 2021 for a review of federal Title IX policies in response to the Trump Administration’s regulations, which the Biden Administration argued “weakened protections for survivors of sexual assault and diminished the promise of an education free from discrimination.”
The U.S. Education Department held public hearings, meetings and listening sessions with students, parents, educators, state government representatives, advocates, lawyers, researchers and other stakeholders through its Office for Civil Rights.
The new Title IX rules
Some of the biggest changes in the proposed rules revolve around how a school investigates allegations of sexual harassment and assault. That includes expanding the definition of what is considered sexual harassment and the types of incidents schools must investigate.
The Biden rules clarify that a university must address all incidents of sex-based discrimination and harassment that contributes to a hostile educational environment, even if the incident occurred or is reported off-campus, outside of a student’s educational programming or activity or outside the United States.
The rules also establish more requirements for schools to conduct “reliable and impartial” investigations of complaints. The department described the updates to procedures as filling in gaps to protect more students rather than overhauling the process.
Under the proposed regulations, schools must:
▪ Treat complainants and respondents equitably.
▪ Have the option to offer an informal resolution for sex discrimination complaints with Title IX coordinators, investigators, decision makers and facilitators who do not have a conflict of interest or bias against involved parties.
▪ Give the parties an equal opportunity to present relevant evidence and respond to the relevant evidence of other parties and ensure that decision makers objectively evaluate each party’s evidence;
▪ Have a process for a decision maker to assess the credibility of parties and witnesses through live questioning, but cross-examination is optional and no longer required.
▪ Use the preponderance-of-the-evidence standard of proof, which means it is more likely than not that an accused student violated student conduct rules. However, a school can use the clear-and-convincing-evidence standard if it uses that standard in all other comparable proceedings.
The UNC System’s guidelines
The UNC System sets Title IX guidelines and a minimum standard for due process at the state’s public universities, but each campus can set its own procedures. And system universities already use a “preponderance of evidence” standard in student disciplinary proceedings.
Under the new rules, schools would no longer be required to host live hearings to evaluate evidence and they can use a single-investigator model.
The proposed regulations also specifically direct schools not to “intimidate, threaten, coerce or discriminate against someone” because they reported an incident or participated in the Title IX process. That includes protecting students from retaliation by other students.
“The proposed regulations reflect the Department’s commitment to give full effect to Title IX, ensuring that no person experiences sex discrimination in education, and that school procedures for addressing complaints of sex discrimination, including sexual violence and other forms of sex-based harassment, are clear, effective, and fair to all involved,” Assistant Secretary for Civil Rights Catherine Lhamon said in a statement.
The proposed regulations still need to go through public comment for a 60-day period before taking effect.
The Foundation for Individual Rights and Expression, a nonpartisan, nonprofit organization focused on defending students’ rights, argues the proposed changes “gut essential free speech and due process rights for college students facing sexual misconduct allegations on campus.”
The decision to eliminate the rights to live hearings, cross-examination and active assistance of a lawyer, is a “recipe for constitutional violations that courts are unlikely to ignore,” FIRE Legislative and Policy Director Joe Cohn said in a statement.
The group plans to submit its formal objections to the proposed changes in the coming weeks.
The education department plans to issue a separate proposal to address how Title IX applies to athletics, including how schools determine a students’ eligibility to participate on a particular male or female athletics team.