Almost two years and 240,000 comments later, the Biden administration has unveiled its final plan for overhauling the regulations that dictate how colleges respond to complaints of sexual harassment, sexual assault, LGBTQ discrimination, and other forms of mistreatment based on sex.
The changes affect how the federal government interprets Title IX, the gender-equity law, which requires colleges to ensure that sex-based discrimination doesn’t prevent students from accessing their education. Increased enforcement of Title IX in recent years has reshaped how colleges investigate and resolve sexual-assault cases.
Title IX has also become a political fight, dividing those who believe that colleges should do more to support victims of sexual misconduct and other sex-based harm, and those who believe that accusations can too easily ruin the lives of students and campus employees.
With Friday’s announcement, President Biden is trying to make his mark on the influential law. Colleges have until August 1 to bring their policies into compliance with the updated regulations, which will soon be published in the Federal Register. Title IX compliance is enforced by the Education Department’s Office for Civil Rights, led by Assistant Secretary Catherine E. Lhamon.
In short, Biden’s new Title IX rule:
- Cements legal protections for LGBTQ and pregnant students
- Expands the Title IX definition of sexual harassment from behavior that is “severe, pervasive, and objectively offensive” to “unwelcome sex-based conduct”
- Removes live-hearing and cross-examination requirements (see below for further explanation)
- Specifies the protections that students and employees have against retaliation from their institution, and clarifies that institutions must protect their students against peer retaliation
- Requires colleges to use the “preponderance of the evidence” standard to decide whether an accused student or employee is responsible for violating campus policies — unless institutions use the “clear and convincing evidence” standard, a higher bar, in all other disciplinary processes for alleged discrimination
- Mandates that colleges investigate allegations of off-campus misconduct that results in a “hostile environment” on campus
- Requires employees with teaching or advising responsibilities to report instances of sex discrimination that involve students to the institution’s Title IX office — enshrining the mandatory-reporting policies that most colleges already have
Miguel A. Cardona, the U.S. secretary of education, praised the new rule’s special attention to pregnant students. “No one should have to give up their dreams of attending school because they’re pregnant,” Cardona said during a call with reporters.
“This rule is designed to encourage reporting,” a senior administration official said during the call. For instance, the official said, the regulations require that Title IX coordinators assess and proactively remove barriers that might prevent students from coming forward about misconduct.
The official also said the department would be releasing a guide to help colleges craft processes for resolving complaints.
With the draft rule released in June 2022, the Biden administration signaled that it would roll back many of the Title IX policy changes made under the Trump administration and reinstate a victim-centered approach to how colleges conduct sexual-misconduct investigations.
Betsy DeVos, who served as education secretary under Trump, had marshaled in changes aimed at making the process fairer for accused students and staff. She required colleges to hold live hearings as part of sexual-misconduct investigations and permit advisers for both parties involved in a case to cross-examine the opposing party.
Biden’s final rule gives colleges more flexibility to decide how they want to handle Title IX proceedings. Live hearings and cross-examination will still be allowed, but no longer mandatory. Such requirements will remain in place at some institutions because of court decisions.
Kimberly Lau, a lawyer specializing in Title IX cases and an advocate of due process, said she expects some small colleges to do away with cross-examinations and live hearings. Losing those processes, she said, would disproportionately affect students and staff who face accusations.
“If it comes down to dollars and resources and if you’re a small school and you don’t now need to do this anymore, you’re not going to do it,” she said. “Look at all the training they have to do. It’s hours and hours.”
Victim advocates have criticized live-hearing and cross-examination requirements because they force students to relive traumatic experiences.
“We strongly believe that school grievance procedures should be trauma-informed and fair to all parties,” said Kenyora Parham, chief executive of the advocacy group End Rape on Campus.
With the new rule, Parham said she hoped precautions would be taken in live hearings “to ensure that student survivors themselves are not enduring any recall of painful details about … their victimization through any adversarial questioning.”
Lau said she supports the Biden administration’s change that requires colleges to investigate off-campus misconduct that contributes to a “hostile environment” on campus, because it’ll ensure that students who face such accusations have due-process rights. Under the Trump administration, Title IX didn’t cover off-campus complaints.
“As it turned out, schools were still interested in adjudicating them or just hearing them out, but under a parallel disciplinary procedure — a different procedure with less rights,” Lau said.
As vice president, Biden himself was the architect of former President Obama’s Title IX policy, which told colleges to start adjudicating reports of sexual assault or risk a federal investigation. Since then, each presidential administration has brought in its own set of sweeping changes, and colleges have tried to keep up.
“It feels a little like whiplash,” said Elizabeth Trayner, assistant vice president for institutional equity at Seattle University and Title IX coordinator. “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.”
The rollout of regulations was hindered by several missed deadlines as federal officials combed through hundreds of thousands of public comments. The delays spurred anxiety among victim-advocacy groups, which were concerned that Title IX offices would continue to operate under what those advocates considered to be flawed protocols.
“Students have been under the Trump 2020 rules for the past three academic years,” Parham said. “Now we’ll finally see what we hope to be more clear protections for survivors, for pregnant and parenting students, for LGBTQIA students.”
In a statement, Congresswoman Virginia Foxx, Republican of North Carolina, skewered the new provisions as furthering “Democrats’ contemptuous culture war that aims to radically redefine sex and gender.”
“The Department of Education has placed Title IX, and the decades of advancement and protections for women and girls that it has yielded, squarely on the chopping block,” said Foxx, who chairs the U.S. House’s education and workforce committee.
A separate federal rule defining how Title IX should apply to the participation of transgender students in athletics was supposed to be released at the same time as the rest of the Biden administration’s changes, but officials have delayed the athletics provisions. A spokesperson for the Education Department didn’t respond to a question asking about an updated timeline.
Under that proposed regulation, colleges would not be able to completely ban transgender students from certain sports teams because of their gender identity. They would have to use criteria that have an “educational” purpose, such as avoiding injury, to limit transgender students’ participation in sports.
Some observers have speculated the delay of the athletics rule has been politically motivated, intended to keep the controversy over trans athletes from marring Biden’s re-election hopes. Trump, Biden’s chief opponent, has come out strongly against the participation of trans women in women’s sports.
“I think it was somewhat strategic, that that won’t hold up the publishing and the finalization of this other final rule,” Trayner said.
