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 questions 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 which occur off-campus.
- In March 2021, President Biden signed an executive order ordering Education Secretary Miguel Cardona to re-examine Title IX policies and to consider revising and rescinding certain procedures.
- In June 2021, an interpretation notice stated discrimination based on gender identity and sexual orientation is prohibited.
- In August 2021, the Department of Education announced in a letter it would cease enforcement of cross-examination policies.
Potential changes to Title IX policy under Biden
Restore definition of sexual harassment to “unwelcome conduct of a sexual nature” and restore standard of evidence to a “preponderance of evidence” rather than the current “clear and convincing evidence.”
Re-establish informal resolution options, meaning complainants can notify institutions of misconduct without submitting a formal report. This would allow other designated staff beyond the Title IX coordinator to notify the institution of misconduct and re-open reporting lines through other avenues, like anonymous reports and newspaper articles. It would also allow institutions to offer alternative resolution options like housing and class schedule changes or no-contact orders.
Formalize the decision to stop judiciary-style proceedings with live questioning and add protections based on gender identity and sexual orientation.
Require institutions to notify respondent of complaint upon charges, rather than the filing of a formal report.
Maintain alternative approaches to dispute resolution, like mediation and restorative justice, but with certain qualifications. Alternative approaches would likely not be allowed in cases of unbalanced power dynamics, like those between a student and a teacher. They would also likely be prohibited in cases of sexual assault, though they may be allowed in those of sexual harassment or misconduct.
Sources and other readings
- What’s Next for Title IX, Future Ed, Sept. 26, 2021.
- How the Biden Administration Should Recast Title IX Regulations, Future Ed, June 17, 2021.
- What 7 experts want included in Biden’s new Title IX regulation, Higher Ed Dive, April 8, 2022.
- The New Provisions in Title IX Regulations, JD Supra, July 2020.
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