The Title IX cheat sheet: What’s changed and what’s changing

During the Trump administration, significant changes were made to Title IX processes and procedures under the direction of Betsy DeVos in her role as Secretary of Education. Since President Biden took office in 2021, the current leadership of the Department of Education have made it clear that further changes are coming to Title IX. The administration has published interpretation notices which allude to forthcoming formal adjustments. However, these changes have been delayed and will likely not be implemented until January 2024.

While the interpretation notices are clear, they are not formalized, leaving many institutions in a sort of limbo and reluctant to change their Title IX policies.

To help clarify the evolving landscape, EAB has reviewed Title IX policies from the last three presidential administrations as well as legal scholarship to identify significant changes and hypothesize what comes next.

Significant Trump-era modifications to Title IX policy

• The definition of sexual harassment was changed from Obama-era “unwelcome conduct of a sexual nature” to conduct “so severe, pervasive, and objectively offensive that it denies a person equal educational access.” The latter definition is generally interpreted as raising the burden of proof.
• Institutions have the power to determine the standard of evidence needed to identify conduct that matches the definition of sexual harassment. That standard must be applied to all proceedings.
• Formal complaints and proceedings are required for all Title IX claims. Under President Obama, institutions were allowed to pursue informal investigations and resolutions, like adjusting class schedules or changing student living arrangements.
• Formal proceedings are activated only when the Title IX coordinator submits a formal report. No other person on campus can begin a Title IX claim. Additionally, the respondent is notified upon the filing of a formal complaint, rather than upon charges as was the case under Obama.
• A judiciary-style method of reviewing claims was established, which allows complainants and respondents to question one another through intermediaries, usually lawyers, in a live hearing. Complainants are required to submit statements and can be cross-examined by respondent representatives, along with witnesses.
• Alternative approaches to dispute resolution are permitted, including mediation, arbitration, and other restorative justice practices, if the parties involved do not want to participate in a judiciary-style hearing.
• Institutions are not required to investigate incidents that occur off-campus.

Biden-era updates