Less than a year after colleges scrambled to carry out sweeping new requirements for handling sexual-misconduct cases, campus officials will have to prepare for yet another round of Title IX changes.
The Education Department’s Office for Civil Rights announced on Tuesday that it would review the Title IX regulations put in place last August by the Trump administration’s education secretary, Betsy DeVos. The rules — which interpret Title IX, the federal gender-equity law — ramped up protections for students accused of sexual misconduct by requiring accusers to be cross-examined at a live hearing, among other things.
The announcement was expected, as President Biden made clear in an executive order last month that he wants to amend the Trump-era Title IX regulations.
The Title IX review begins exactly 10 years after Biden, as vice president, announced the “Dear Colleague letter,” the landmark document that implored colleges to take sexual violence more seriously or risk facing a federal investigation. The Dear Colleague letter touched off a decade of intense scrutiny of how colleges respond to sexual-misconduct complaints. DeVos rescinded that guidance in 2017.
Here’s what you need to know about Biden’s Title IX review.
What is the Education Department doing?
The Education Department’s civil-rights office is reviewing “existing regulations, orders, guidance, policies, and any other similar agency actions” on Title IX. The civil-rights office will also hold a multiday public hearing at which people can offer comments, in oral or written form.
The review will be led, for now, by Suzanne B. Goldberg, acting assistant secretary for civil rights and a former senior official at Columbia University. Goldberg, who’s also a law professor, was closely involved with Columbia’s Title IX process at a time when the university was mired in controversy over its handling of sexual-assault cases.
Know Your IX, a national victim-advocacy group, praised Tuesday’s announcement and said it was a sign that the Biden administration had listened to calls for change. Over the past week, Know Your IX has been drumming up support with an #EDActNow campaign that demanded the Education Department scrap the Trump-era rules.
What’s the timeline?
The public hearing on Title IX will happen “in the coming weeks,” according to the civil-rights office. The office also plans to release a new guidance document, a “Q&A,” that will tell colleges how the agency plans to enforce the current Title IX rules while the review is in progress.
Amended Title IX regulations will take a lot longer. “Eighteen months, at least,” said Melissa M. Carleton, a higher-ed lawyer who works with colleges on Title IX issues. The Trump administration announced its intent to craft new Title IX rules in September 2017, and finished the rulemaking process three years later.
What changes might be coming for Title IX and sexual misconduct?
Courtney Bullard, a former campus counsel who now advises colleges, said she expects the Biden administration to expand the current definition of harassment under Title IX to include more types of sexual misconduct, and also to cover sexual orientation and gender identity. Harassment is currently defined as conduct that is “so severe, pervasive, and objectively offensive” that it denies a person access to an education.
The Trump-era Title IX regulations also don’t cover most off-campus sexual assaults, and Bullard predicts that will change.
Many victim advocates are lobbying to end mandatory hearings and cross-examination, saying such processes can retraumatize victims and discourage them from coming forward in the first place. Proponents of due process, though, believe that cross-examination is the best way to learn the truth of what happened in an alleged incident.
Goldberg wrote in The Chronicle in 2019, as those Title IX rules were being developed, that she didn’t support cross-examination in campus Title IX cases.
“The usual image of cross-examination includes trained lawyers asking precise, rigorous questions of individuals on the other side of a case and a judge ruling on well-crafted objections to improper questions,” she wrote. “But campuses are not courtrooms, and the reality at most colleges and universities would look quite different.”
Still, Carleton doesn’t think colleges will entirely scrap Title IX hearings, even if the Education Department no longer mandates them. “It’s always hard to roll back procedural protections once they’re in place,” she said. What’s more, recent federal court rulings mean that colleges in certain parts of the country will have to continue holding hearings, no matter what.
The civil-rights office’s forthcoming Q&A document probably won’t prompt major campus overhauls, Carleton said. But it could bring about changes in particular aspects of the Title IX process.
For instance: Say an accused student makes a confession in writing, but then doesn’t appear at the Title IX hearing. Currently, if a student decides not to participate in the hearing, colleges can’t use any information that student has provided to determine whether a sexual assault occurred.
That would put colleges in an uncomfortable position in which they could feel forced to make a finding that might be incorrect, Carleton said. She hopes the Education Department will clarify how colleges should handle such situations.
What should colleges do in the meantime?
Explain to the campus community that administrators are aware of what’s happening, but that the Trump-era Title IX rules remain on the books, Carleton said.
Colleges are just finishing up their first academic year under the mandates. Most institutions had to revamp their Title IX policies. Some campuses had to set up entirely new adjudication procedures for sexual-misconduct cases and hire new staff members.
Federal Title IX rules and guidelines for colleges have been altered several times over the past decade. While many campus officials may welcome changes, Bullard said, carrying them out means that they will have to spend time on legal compliance that they’d rather spend on sexual-assault prevention. “It’s overwhelming for a lot of schools,” she said.
