What’s New
Colleges must once again hold live disciplinary hearings with cross-examination when investigating sexual-misconduct complaints. The Education Department’s definition of sexual harassment has narrowed. Sexual orientation and gender identity are no longer protected categories under federal antidiscrimination laws.
That’s because the department’s Office for Civil Rights notified colleges Friday that it will enforce the Title IX mandates approved during President Donald J. Trump’s first term.
Craig Trainor, acting assistant secretary for civil rights, said in a statement that the department would support women and girls “by protecting their right to safe and separate facilities and activities in schools, colleges, and universities.”
The Details
Friday’s announcement comes as little surprise. The new administration was expected to undo protections for transgender students and other changes put in place by the Biden administration, which spent much of its tenure trying to undo the Trump rule from 2020.
A recent development helped speed up Trump’s timeline: Biden’s Title IX rule — which guaranteed students access to facilities that align with their gender identity — was struck down this month.
Twenty-six states challenged Biden’s Title IX rule in court after it was introduced last spring, primarily opposing its broadened protections for transgender students. In January, a federal judge in Kentucky sided with six Republican-led states that had brought such a lawsuit, barring Biden’s rule from nationwide enforcement.
Gov. Patrick Morrisey of West Virginia celebrated the announcement Friday, saying in a statement that Biden’s Education Department had been “infected” by “the woke virus.”
Campus Title IX offices can expect more paperwork, said Melissa Carleton, higher-education chair at the law firm Bricker Graydon. The 2020 rule requires more steps, from formal signed complaints to live hearings and cross-examinations. Active cases that were opened under policies without those requirements may need to be adjudicated anew.
Hearings and cross-examination allow for students and employees involved in a sexual-misconduct case, through their “advisers,” to question each other’s version of events and try to poke holes in their narrative.
Trump’s 2020 rule also imposes a definition of sexual harassment that raises the bar for complaints: Reported misconduct has to be “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education.” Colleges can still investigate minor cases of harassment or unwanted touching, but such cases are no longer Title IX issues.
The Backdrop
The Education Department’s enforcement letter ushers in clarity for colleges who have floated in limbo over sex-discrimination policies on campus. Title IX has become a political football, with federal guidance flip-flopping between Trump’s and Biden’s interpretations of the law.
The debate has seesawed between whether colleges should do more to support victims of sex-based harm or whether they should tread more carefully in launching investigations, given the reputational toll on students and staff accused of sexual misconduct.
“It feels a little like whiplash,” Elizabeth Trayner, a Title IX coordinator at Seattle University told The Chronicle after Biden released his rule in April.“We finally get used to doing it a certain way, and then you turn around and now we’re going to do it a different way. It keeps us on our toes, but not necessarily in a good way.”
What to Watch For
Friday’s “Dear Colleague” letter doubled down on an interpretation of a person’s “sex” as “the objective, immutable characteristic of being born male or female as outlined in the 2020 Title IX Rule.”
Carleton noted an inaccuracy — the original 2020 rule does not include that definition.
The letter said Title IX enforcement must comply with Trump’s executive order asserting that the government will only recognize “two sexes.”
“As a constitutional matter, the president’s interpretation of the law governs because he alone controls and supervises subordinate officers who exercise discretionary executive power on his behalf,” the letter says.
“That is jaw-dropping,” Carleton said. “That is an exceptionally broad assertion of power. It doesn’t have any real legal bearing on Title IX. … But I think it is a broader indication of how this administration intends to move going forward.”
Most colleges will likely maintain policies beyond Title IX to support transgender students; some states require that antidiscrimination protocols protect gender identity. Carleton wonders if Trump might scrutinize colleges that continue to have those protections.
But Carleton predicts that not much will change for colleges’ procedures, especially in the 26 states that were never allowed to implement Biden’s rule.
“It’s just telling everybody, this is how we’re moving going forward,” Carleton said. In terms of the policies colleges will adapt, she said, “We’re just basically going in a time machine” back to before Biden’s 2024 rule.