Biden’s Title IX Rewrite Expands Colleges’ Reach Amid Due Process Protests
As Title IX turned 50 years old last week, the U.S. Department of Education released for public comment a proposal for far-reaching regulatory changes.
The changes, the agency says, are intended to reverse “controversial regulations” issued during the tenure of former President Donald Trump’s education secretary, Betsy DeVos, regarding “protections for survivors of sexual assault.”
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But in emphasizing accusers’ rights, proposed changes offered by President Joe Biden’s education secretary, Miguel Cardona, would impact procedural protections for accused students—including athletes—and, in some instances, make it harder for them to defend themselves.
Title IX complaints often involve allegations of criminal behavior, such as rape or assault. At the university level, a finding of fault can trigger a non-criminal penalty, such as expulsion, suspension or other punishment at the school’s discretion. These complaints also intersect with university codes of conduct and related bodies of rules that govern students and employees. Committees with administrators, faculty and students as members can all play pivotal roles in the outcomes of Title IX proceedings. In some instances, accused students face criminal proceedings that are outside of the school’s limited jurisdiction.
For those and other reasons, Title IX is not a “sports law.” More broadly, it prohibits sex discrimination at colleges receiving federal money. However, Title IX is commonly linked to athletics and requires equitable treatment of men and women who play scholastic or collegiate sports. Title IX also places responsibilities on colleges in how they address allegations of sexual harassment and sexual discrimination. In a 2018 study of Title IX complaints, ESPN’s Outside the Lines found that college athletes are “three times more likely than other students to be accused of sexual misconduct or domestic violence in complaints made at Power Five conference schools.”
The proposed regulations, many of which resemble regulations during former President Barack Obama’s term, do not take effect immediately. For 60 days, the public can comment on them, and they could be altered.
The details of the proposed changes are vast and numerous, totaling 701 pages. Several aspects will command the attention of athletic departments’ staff, university compliance officers and attorneys who represent accusers and the accused.
One possible change would expand the prohibition of sexual harassment to include other forms of sex-based harassment. Harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity would all be explicitly barred.
Another change would extend a university’s obligation to address a sex-based hostile environment when it “occurred outside the recipient’s education program or activity or outside the United States.” This means conduct occurring off-campus or in study-abroad programs could fall within the ambit of responsibility.
For accused students, their ability to contest accusations could be limited by changes in grievance procedures. The standard of proof for determining whether sex discrimination transpired is set to pivot in many instances.
Currently, universities can select the “clear and convincing evidence” standard or “the preponderance of the evidence” standard. The former is a higher threshold and more favorable for the accused, while the latter, often used in civil litigation, is sometimes described as “more likely than not” or “anything above 50% certainty.” The proposed changes would compel the use of the lower standard of guilt unless the university uses clear and convincing “in all other comparable proceedings, including other discrimination complaints.”
Another important set of changes focuses on the decision-making used for Title IX grievances. A live hearing would no longer be required for a grievance. Instead, a decisionmaker selected by a school would have discretion to “ask relevant” questions at a meeting.
Catherine Lhamon, the assistant secretary for Civil Rights, maintained 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.”
Alan Milstein, an attorney who has represented college athletes accused of wrongdoing, disagrees. He believes the proposed changes will not promote Title IX’s underlying goal of justice.
“I find the proposed changes deeply disturbing,” he told Sportico. “One can be in favor of disciplining those who abuse or assault without eliminating due process protections to ensure fact finders can learn whether the accusations are true or false.”
Title IX grievance procedures have been addressed by U.S. Supreme Court justices. For instance, when Justice Amy Coney Barrett was a judge on the U.S. Court of Appeals for the Seventh Circuit in 2019, she rebuked Purdue University for its handling of a Title IX matter. She found the school had wrongfully denied the accused student a chance to review key evidence and questioned why those handling the process would find the accuser more believable than the accused when they hadn’t spoken with the accuser. The university, she found, “fell short of what even a high school must provide to a student facing a days-long suspension.”
On another front, the Department of Education shared that it will “engage in a separate rulemaking” to address Title IX’s application to athletics, including in the context of transgender athletes and their eligibility to “participate on a particular male or female athletic team.” That rulemaking could spark legal cases, particularly since 18 states have banned or restricted transgender women from participating in women’s sports. The underlying question of federal rights versus state rights, which has set in motion several noteworthy cases before the Court this past term, could surface in the future in the context of Title IX.
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