U.S. Secretary of Education Miguel Cardona on Thursday unveiled a regulatory proposal on Title IX — the federal law banning sex discrimination in schools — that largely unravels a rule set by the Trump administration.
Key changes under the proposed rule include not requiring colleges to have a live hearing to assess claims of sexual violence and cementing protections for transgender students.
Under the current rule, created by former Education Secretary Betsy DeVos, institutions must hold a hearing to evaluate reports of sexual misconduct. Under Cardona’s proposed new model, a college official could both investigate and make a decision on a report of sexual violence.
This is known as a single-investigator system, which has come under attack by civil liberties advocates, who argue it does not provide due process.
Under Cardona’s draft rule, colleges would generally need to use a “preponderance of the evidence” standard, which means a ruling can be made against a student if there is a greater than 50% chance that a claim is true. But colleges could be able to choose to use a higher bar, the “clear and convincing” standard, if they do so in other similar disciplinary procedures.
The plan would also broaden the scope of cases colleges would be required to investigate. They would need to look into alleged misconduct involving college representatives that occurs off campus or that happens in buildings owned or controlled by a student organization.
The draft regulation makes clear that discrimination against a student’s gender identity or sexual orientation could constitute a Title IX violation. However, the Education Department opted not to clarify some protections for student-athletes, specifically the criteria used by colleges to determine whether they can participate in men’s or women’s sports.
A senior department official said Thursday the Education Department will pursue a separate rulemaking process for Title IX and athletics.
The Biden administration also touted protections in the proposed rule for students and employees who are pregnant, saying it would strengthen requirements for reasonable modifications, break time and lactation space.
The administration’s release of the proposal on Thursday — the 50th anniversary of former President Richard Nixon signing Title IX into law — kicks off a process for putting a new rule into force.
That starts with a public comment period. The Education Department must review comments it receives and respond to them in a final iteration of the rule. This may extend the timeline for finalizing the regulation. DeVos’ draft rule attracted more than 120,000 comments, and almost two years passed between the Trump administration publishing its draft rule and its regulations going into force.
Title IX of the Education Amendments of 1972 has long been in place to safeguard college students from sex-based discrimination and has been applied in areas such as athletics.
But in the last 11 years, it has undergone a substantial regulatory transformation, beginning with the Obama administration issuing guidance in 2011. It directed how colleges should investigate and adjudicate sexual assault claims.
Sexual assault survivor advocates credit the Obama-era policies with bringing new light to issues of campus sexual violence, which continues to plague colleges nationwide. An Association of American Universities survey in 2020 found 13% of students had experienced nonconsensual sexual contact.
The Obama administration guidance spurred political warfare. Due process activists accused the Education Department of coercing colleges to find accused students responsible for sexual violence by threatening to yank their federal funding.
Title IX litigation exploded, with students taking to the courts to allege their institutions had botched their sexual violence cases.
DeVos seized on civil liberties activists’ complaints and in 2017 revoked the Obama administration’s guidance, saying the Education Department would put an end to colleges’ “kangaroo courts” to judge Title IX claims.
The next year, DeVos released the regulatory proposal. It enraged activists for sexual violence survivors who said it would discourage reporting, as students would need to participate in the arduous live hearing in which an accused student would be allowed to cross-examine the survivor through an adviser of their choice.
The rule also permitted colleges to disregard most sexual assaults that occur off campus and narrowed the definition of sexual harassment.
A final version of DeVos’ rule took effect August 2020 and was largely unchanged from the draft.