The Biden administration on Thursday proposed substantial changes to federal rules under the Title IX Gender Equity Act that would lift the Trump administration’s mandates on sexual misconduct that supporters of assault survivors have claimed to be discriminated against. of the victims.
The new regulation would also extend the Title IX ban on sex discrimination to sexual orientation and gender identity, offering fundamental safeguards to transgender students. The current Title IX regulation does not affect the rights of transgender students.
The proposed rules are likely to spark a heated battle over the obligations of schools to address sexual misconduct, the balance between the rights of victims and accused students, and the rights of transgender students.
“Our proposed changes would fully protect students from all forms of sexual discrimination, instead of limiting some protections to sexual harassment only, and would clarify that such protections include discrimination based on sexual orientation and gender identity,” he said. Thursday, the Secretary of Education Miguel Cardona to the reporters.
The proposed rules would retain some Trump-era mandates, such as provisions requiring schools to assume accused students are innocent until the end of grievance procedures and to continue to allow informal resolutions of sexual misconduct complaints if both the accuser that the accused agree.
They would also allow schools to use a clear and compelling standard of proof – which generally means around 75% certainty – to determine whether accused students have violated the rules of sexual misconduct, but only if schools use it in other cases as well. of discrimination, such as those involving racial harassment. If not, schools must use the standard of preponderance of evidence, or about 51% certainty, the same threshold used in most civil cases.
The proposal deviates from the current regulation in a number of ways, however, including that live hearings would no longer be required in college sexual misconduct cases, cross-examination in hearings would not be required, and schools would be allowed to investigate and punish the assaults that take place off-site. The proposed rules would also allow investigators to decide the outcome of cases, but require that all Title IX coordinators, investigators and decision makers have no conflicts of interest or bias for or against complainants or respondents.
The Biden administration’s proposal would also allow schools to investigate and sanction sexual misconduct without formal reporting.
The public will be able to comment on the proposal for the next 60 days. The Department of Education will then have to address each point in writing before the regulation can be finalized. The process is likely to take several months, if not more, to finalize.
But if Republicans retake majorities in the House and Senate, lawmakers could use the Congressional Review Act to vote within 60 legislative days to overturn key regulations enacted by federal agencies.
“We are always concerned that students’ rights are fully protected in school every day, so we are moving as quickly as possible to make sure those rights are fully protected,” said a senior department official.
Title IX, an element of the 1972 Education Amendments, prohibits discrimination based on sex in any school that receives federal funding, which is nearly all of them. Federal courts have found that the law requires schools to face allegations of sexual misconduct.
The Obama administration stepped up the enforcement of Title IX in response to increased activism by college sexual assault survivors who claimed schools were giving slapping punishments to assailants and not helping victims.
Conservative organizations, civil liberties groups and some law professors have opposed the policies, complaining that they did not safeguard due process in the campus investigations.
The Trump administration subsequently spent much of its term building a Title IX regulation, implemented in 2020, which prescribed measures schools must take to respond to sexual assault allegations and strengthened the definition of sexual harassment.
The regulation stated that schools were not allowed to open Title IX cases if alleged off-campus assaults occurred, required colleges to hold hearings to determine the guilt of accused students, and limited what could be considered in the courts, among many other provisions. The rules have been overwhelmingly challenged by sexual assault survivor advocacy groups, civil rights organizations, and commercial groups for K-12 schools and colleges.
During the 2020 presidential campaign, President Joe Biden promised to overturn the rules.
The Biden administration has said it is using the 2020 Supreme Court decision in Bostock v. Clayton County, who said employees cannot be discriminated against in the workplace because they are gay or transgender, to guide his approach to LGBTQ rights in educational settings.
Cementing discrimination against transgender students as a Title IX violation has attracted a host of new activist groups, many of whom have sprung up over the past two years in a wave of battles within primary and secondary schools over race and gender.
The human rights campaign, an advocacy group for LGBTQ people, said the inclusion of sexual orientation and gender identity in Thursday’s proposed regulation is a “good first step” towards protecting a ” vulnerable population that too often is prey “.
“It is particularly important given the attacks on transgender youth across the country,” Sarah Warbelow, legal director of the human rights campaign, said in a statement.
In April, 27 conservative activist groups sent a letter to Cardona expressing concern that the Department of Education’s plans for the new Title IX regulations would erode due process safeguards for accused students and would extend protections for gender identity “would deprive girls and women of equal athletic opportunities. ”
The proposed regulation would not address anyone who is allowed to be part of men’s or women’s athletic teams. A senior Education Department official said the department plans to propose separate rules regarding track and field, but the official could not say when.
Cardona said, “The department recognizes that standards for students participating in men’s and women’s athletic teams are evolving in real time.”
Over 200 civil rights groups sent out their letter this month urging the Department of Education to deliver on the administration’s promise to issue new Title IX rules, arguing that sexual assault survivors and LGBTQ and pregnant female students have in dire need of protection and that the current regulation has dissuaded students from reporting abuse allegations.
“There are students who will not go to trial, who are too afraid to go to trial, who do not trust the process,” said Adele Kimmel, a victim’s rights attorney for the nonprofit Public Justice group, one of the groups to sign the letter.
The existing regulation imposed by the Trump administration has been a “nightmare” that even schools must adhere to, said Jackie Wernz, an Illinois-based attorney who advises schools on civil rights laws and federal mandates. The requirements for misconduct investigations are overly prescriptive, she said, and often conflict with state laws and trade union agreements.
“It puts schools in a stalemate, as they have to figure out which law they want to break,” Wernz said.
The Trump administration also overruled the requirement that Title IX cases be resolved within 60 days, instead requiring them to be completed in a reasonable amount of time. The new proposal would maintain the same standard but would add that schools need to set reasonably timely timelines for the main stages of complaints procedures.
Elizabeth Abdnour, a Michigan-based attorney who represents students in Title IX cases, said she has had many cases where schools have taken more than a year to resolve investigations.
“There is no way to challenge it when the rule just says the timeline has to be reasonable,” Abdnour said.