USA TODAY International Edition
It’s Biden’s turn to carry Title IX ‘ political football’
New rules may focus on trans students, assault
A federal rule, less than 40 words long, helped to increase the number of women competing in college athletics.
It’s at the center of two nationwide debates: whether transgender women should be allowed to compete against other women in school athletics and how colleges should be required to investigate allegations of sexual misconduct on campus.
The Biden administration’s Department of Education is likely to soon release its proposed regulations on Title IX, and the changes will probably focus on transgender students and sexual assault on campus.
Recent White House administrations have put their stamp on Title IX: President Barack Obama guided schools to be tougher on sexual assault, then the Trump administration did more to protect people accused of sexual assault.
Whatever the Biden administration proposes, higher education leaders say the ever- changing rules can be challenging to follow and even more difficult for universities to consistently enforce. They are worried a new president could be in place by 2025, prompting another wave of rules.
“By that point, we could have another new administration in Washington, D. C., that starts another two- year process, making this thing a political football that seems to just swing between Democrat and Republican
priorities every time there's a regime change in D. C.,” said Brett Sokolow, president of the Association of Title IX Administrators, a group of school professionals that ensure schools comply with the rule.
Advocates for survivors of sexual assault have long wanted the Biden administration to redo the rules established during the Trump administration, which they say impede victims from coming forward. Those regulations require that colleges hold live hearings on sexual accusations and narrow the type of incidents that universities can legally respond to. Defenders of the rules say the policies for the first time built in formal protections for people accused of sexual assault or harassment.
President Joe Biden directed the Education Department last year to review Title IX policies. As a presidential candidate, he described the Trump administration's rules as a “green light to ignore sexual violence and strip survivors of their rights,” and he favorably described the rules developed during the Obama administration.
“I'll be right where I always have been throughout my career – on the side of survivors, who deserve to have their voices heard, their claims taken seriously and investigated and their rights upheld,” Biden said.
The Education Department said it would release a draft version of the rules this spring. After that, the public will be allowed to comment on the rules before the department issues its final version.
Shiwali Patel, director of justice for student survivors at the National Women's Law Center, said the Biden administration should roll back the Trump- era rules, which she said narrowed the type of sexual harassment universities can respond to. For exam
ple, they limited universities' responsibilities to investigate claims of sexual harassment off- campus.
Under the Obama- era rules, colleges had to clear a lower bar to prove harassment. Investigators had to show only that it was more likely than not that sexual harassment occurred. During the Trump administration, the rules were changed to require schools to pursue a “clear and convincing” standard showing the incident probably took place. It's a higher standard of proof than the Obama rules required but still less than what's required at criminal trials.
Patel said a federal district court in Massachusetts did away with a provision requiring anyone who offered evidence in hearings to be available for cross- examination as part of a live trial, which meant written testimony, texts and similar materials would be barred unless someone participated in the live hearing.
Last July, Judge William Young found the requirement “arbitrary and capricious” and said it rendered “the
most vital and ultimate hallmark of the investigation – the hearing – a remarkably hollow gesture.”
Patel said the prospect of sitting through a live cross- examination for many was daunting.
“For many survivors, it has caused them to not to go forward with the investigation or hearing at all,” Patel said.
Patel said she wants to see rules that would require schools to provide more services for survivors of sexual assaults, such as assigning them new classes or living spaces away from their attacker.
Others said the Trump administration's rules offer important protections to students accused of sexual misconduct or assault.
Samantha Harris, a partner at Allen Harris Law, a firm with offices in Connecticut and Pennsylvania, represents students in their university hearings.
Many schools had used a model of investigating, she said, that relied on one person who interviewed the relevant parties, collected evidence and reached a finding. Under the current rules, Harris said, both the accused and the accuser can review evidence and ask questions of the other party.
“It has led to a lot more transparency and created a lot less room for findings not based on evidence,” Harris said. “I understand why schools find them burdensome. I don't think that changes the fact that they should be obligated to do it fairly.”
Harris said she hopes the upcoming Biden regulations protect the ability of universities to offer informal resolutions to complaints. That would allow students to get a sense of resolution that doesn't involve the time and energy associated with an investigation, she said.
Transgender student protections
Biden and Education Secretary Miguel Cardona have expressed their support for trans students, and many expect the administration's rules will offer more protections for students regardless of their gender.
The Education Department issued guidance stating that Title IX prohibits discrimination on the basis of sexual orientation and gender identity, a reversal from when Education Secretary Betsy DeVos headed the department under Trump. The federal agency mentioned a Supreme Court case that found discrimination based on gender identity or sexual orientation was already barred through Title VII, a federal rule that prohibits discrimination in the workplace based on “race, color, religion, sex and national origin.”
“The Supreme Court has upheld the right for LGBTQ+ people to live and work without fear of harassment, exclusion and discrimination – and our LGBTQ+ students have the same rights and deserve the same protections,” Cardona said in announcing the department's guidance.
Sokolow said the biggest question is whether the Education Department will require schools to allow trans female students to compete in female athletic leagues.
Some states passed laws that prevent trans students from playing sports consistent with their gender identity. Others, Sokolow said, deferred to athletic leagues to decide the rules of play. ( The NCAA delegated to individual sports to set their own rules.)
Sokolow said requiring schools to allow trans students to play would force the leagues' hand. That would probably open the door to more athletic opportunities for trans students. He expects such a move would be met with legal challenges.
Pushback has already begun. A group of 15 attorneys general called on the administration in April to stop its rewrite of the rules. Parents Defending Education, a conservative- leaning advocacy group, and 26 other organizations sent a letter to Cardona urging him to refrain from rewriting Title IX. They raised a fear of young women forced to compete against transgender athletes.
“We urge you to reject the ideology,” they wrote, “behind this attempt to use the Department of Education to accomplish what has not been achieved at the ballot box or by Congress.”