The U.S. Department of Education on Thursday released its proposed Title IX rules, which would reverse many Trump-era policies and restore the pro-victim approach supported by the Obama administration.
Specifically, the rules would be:
- Sexual orientation and gender identity, as well as “sex stereotypes, sexual characteristics, [and] Pregnancy or related conditions. “
- Permission, but no longer required, cross-examination in direct hearings and Title IX investigations.
- Expand the definition of sexual harassment.
- Explain to students, faculty and staff the protections from retaliation by their organization.
- Colleges are required to deal with off-campus conduct that “creates or contributes hostile environments.”
- Certain staff members are required to report potential sexual discrimination to the Title IX Office – back to comprehensive mandatory-reporting requirements.
The changes will once again raise awareness about how colleges handle sexual harassment complaints. Experts working with colleges say campus officials are tired of more than a decade of political ping-pong in Title IX, as the recent three presidential administrations have changed rules and directives, and colleges are in a hurry to comply.
Shortly after taking office in 2021, President Biden issued an executive order directing Education Secretary Miguel Cardona to review the Trump administration’s Title IX rules, issue new directives, and consider regulatory changes. The move comes as Biden prioritizes awareness and prevention of on-campus sexual harassment as vice president.
The Biden administration’s proposals were supposed to be released in April, but were delayed. The 60-day public comment period, through federal registration, begins immediately. After considering the response, the department will issue its final rules, which carry the force of law. When the previous administration proposed its title IX rules, in 2018, the department received more than 100,000 comments.
Title IX, which prohibits sex-based discrimination in educational settings, has been in effect since 1972, but was primarily known as sports law. In 2011, the Obama administration issued a directive spelling out the obligations of colleges to respond to sexual violence under Title IX. The directive, known as the “Dear Fellow” letter, instructs colleges to take sexual harassment more seriously or risk the Department of Education’s Office of Civil Rights investigating.
If colleges are found to be in violation of Title IX, they may lose their federal funds. (The Civil Rights Office has never imposed such a fine.) Institutions went on strike to follow instructions; Many colleges created Title IX offices and recruited new staff.
However, concerns were raised that some students accused of abuse had been punished on the basis of vague allegations and had not been given a meaningful opportunity to defend themselves. Led by former Secretary of Education Betsy Davos, the Trump administration has been criticizing codified protections for convicted students, applause from fair process advocates, and criticism from victim-rights groups.
Now the pendulum is back. Let’s take a closer look at what the proposed rules of the Biden administration will change.
Add protection for LGBTQ + students.
For the first time, the proposed rules would formalize protection for sexual orientation and gender identity under Title IX. But the Department of Education has condemned transgender students’ participation in athletics, saying authorities will propose separate rules in the future.
The Biden administration has defined Title IX as a prohibition against discrimination based on these characteristics, but that interpretation has not been codified before.
In 2017, Trump’s Department of Education pulled out an Obama-era directive seeking to protect the rights of transgender students under Title IX.
Kenyora Parham, executive director of End Rape on Campus, an advocacy group for on-campus sexual abuse survivors, said transgender students were unequally affected by on-campus sexual abuse. The data refers to this. Trans students also have higher rates of anxiety, depression and suicidal ideation than their peer peers, research has shown.
Parham said the new rules would “clarify and establish the fact that transgender students also have rights.”
Eliminate cross-examination and direct hearing requirements.
Biden’s proposed rules would deduct key features of Davos policy from the rules, including cross-examination and direct hearing requirements.
Under the DeVos rule, colleges must hold direct hearings as part of formal title IX research and allow counselors for each student to cross-examine the other side. Victim-advocacy groups oppose these requirements, saying such procedures can be traumatic for victims of sexual abuse.
Title IX experts cite another problem for colleges: Even if a student admits to sexual misconduct, the campus hearing panel cannot actually consider that testimony if the student refuses to attend the hearing. In August 2021, the Federal District Court of Massachusetts ruled that the prohibition was “arbitrary and arbitrary” and that the Office of the Department for Civil Rights had announced that it would not impose a cross-examination requirement; This leaves the need for a direct hearing untouched.
Some colleges, such as the University of Michigan in Ann Arbor, will have to secure direct hearings and cross-examination in Title IX cases due to recent appeals-court decisions.
Adopt a broad definition of sexual harassment.
The Biden Rule proposes to broaden the scope of harassment behavior under Title IX “all forms of sexual harassment, including undesirable sexual-based behavior that creates an adverse environment by denying or limiting a person’s ability to participate or benefit.” Or activity. “
The shift would increase the number of cases that would force colleges to investigate legally, although many campus officials said they would continue to investigate all abuses reported under the strict definition in the DeVos rules.
Under DeVos, the definition of sexual harassment was changed from “unwanted conduct of a sexual nature” to “serious, pervasive and objectively offensive” behavior. Critics of the narrow meaning argue that this prevents victims from reporting sexual harassment.
“With that narrowness of definition, it essentially states that a student must endure repeated levels of violence before his or her school must take up his or her case,” said Parham, an end-of-campus rapist.
Although many reasonable process advocates support narrowing down the level of harassment at the level of harassment under Title IX, they also argue that the current rules allow colleges to use “parallel justice systems” to decide sexual-abuse cases in a written way – where one system is entitled to Title IX. Does not meet strict criteria for.
And that means students aren’t provided with some of the causal protections that you see in Title IX type regimes, “says Kimberly Lau, a Title IX lawyer and causal advocate.
Jeffrey Nolan, a Title IX lawyer who works with colleges, said that alternative sexual-abuse policies rely on Title IX-Sexual Abuse Policies parallel entities.
“Some schools use the same process for everything because it’s administratively efficient and makes sure you’re going to fight with parties that aren’t doing enough procedurally,” Nolan said. “Other schools say we don’t think there needs to be a direct hearing with the cross for fairness [examination] Powered by Blogger. “
But it’s been a nightmare for colleges to explain duplicate processes to students, Nolan said: “You have 80 pages in a flowchart and it’s unnecessarily complicated.”
It is difficult to estimate how long it will take before the proposed rules are finalized. DeVos released its proposed rules in 2018, but they did not become law until 2020.
In May 2020, when the final Title IX rules were removed, colleges were given only a few months to comply before the rules came into force.
Phil Catanzano, who teaches higher education and law at Harvard Law School and has spent nearly a decade in office for civil rights, said he hopes colleges will be given more time to pick up speed this time around.
In 2020, “many schools were trying to figure out what the best process is – how do we do it as quickly as possible and also maintain what we want to do as part of our institutional philosophy?” “And that was really hard.”
Another notable question is what the federal enforcement of Title IX looks like – and Assistant Secretary for Civil Rights Catherine E. Lhamon goes into crime and puts dozens of colleges under investigation, as she did during her previous tenure as civil leader. -Office Office under the Obama administration.
But many Title IX experts also said The Chronicle That will make it easier for colleges to adapt to more flexible rules, unlike the rigid railings that were put in place during the last administration.
Courtney Bullard, a higher-education lawyer and expert on Title IX compliance, said that while organizations are laughing at living in an ever-changing political environment, “it’s really important to go back to what really matters – who is trying to stop these things. You’re doing a really good job of responding and addressing them because of what happened and then.