What You Need to Know About the Biden Administration’s Title IX Proposal

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What You Need to Know About the Biden Administration’s Title IX Proposal

In a recent EAB Blog, researcher Katie Langford outlined the significant Trump-era modifications to Title IX and the potential updates from the Biden administration. The U.S. Education Department released its proposed changes on June 23rd, including reversals of many policies enacted by the previous administration. The new rules emphasize the importance of protecting victims of sexual harassment and discrimination and creating environments to easily report misconduct. The proposed updates are now open for a 60-day public comment and review period, and the date they will go into effect is still uncertain.

EAB has compiled a guide of the most impactful proposed changes to further our existing cheat-sheet and outline what this could mean for your policies.

Proposal Highlights

  1. Re-instate the Obama-era definition of sexual harassment, including “harassment based on sex, sexual orientation, gender identity, pregnancy, or any created hostile environment.” This definition expands protection to LGBTQ students who tend to suffer more harassment in comparison to other students.
  2. In-person, cross-examination hearings are permitted but no longer required for campus investigations. Further, institutions must complete these cases in a “prompt timeline.” Informal resolution of an incident without the submission of a formal complaint is allowed.
  3. Institutions must investigate incidents which occur at education programs off campus, including out of the country (e.g., study abroad).
  4. Employees at colleges operating an education program (i.e., anyone with teaching or advising responsibilities) with knowledge of an instance of misconduct must report it. Additionally, other faculty and staff members must provide students with the contact information of the campus’s Title IX coordinator if they are not designated as confidential resources.
  5. Students who leave an educational program due to an instance of discrimination may file a retroactive complaint.

The Conversation

Campus leaders are exhausted by the constant back-and-forth on Title IX, as each administration creates dissonant regulations and expect immediate follow-through on campuses. Given President Biden’s previous focus on campus sexual assault prevention during his vice presidency, the victim-focused propositions were expected. As the changes would make reporting incidents less prescriptive, institutions could consolidate procedures and make them less confusing for students, encouraging them to engage with their Title IX representatives. Survivor-advocacy groups are celebrating the proposed updates, stating that the DeVos-era rulings discouraged students from reporting cases of violence and often let offenders free.

Conversely, some have criticized the rules as they would strip students of important due process rights. Many civil liberties organizations, including the ACLU, support the bulk of the proposed regulations, as they ensure schools are “[safeguarding] students from sexual harassment and violence and guaranteeing fair process for students in school disciplinary proceedings.” However, these organizations have concerns, with ACLU representatives pointing out the proposed regulations deny students facing serious penalties in college disciplinary hearings important procedural rights, including live hearings and cross-examination. Although some consider the court-like campus hearings too legalistic, proponents believe it ensures fairness in a high-stakes situations.

What Universities Should Expect

Despite the 60-day public comment period, no one knows when these proposed changes may actually go into effect. For example, DeVos’s Department of Education released proposed regulations in 2018 that were not enacted until 2020. However, as these proposed changes are more flexible, Title IX experts believe it will be easier for schools to adopt the new regulations. The Biden administration may also choose to create a longer grace period for schools to implement the updates. Nevertheless, experts warn that the proposed changes may not survive neither a future administration nor the courts.

Courtney Bullard, a higher-education lawyer and expert on the Title IX compliance, summarized the problem with the constant changes well in an interview with The Chronicle. The everchanging political climate takes away from what is important in these scenarios: preventing discrimination and violence and responding well when they do.

For additional reading, please see the following articles:

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