Biden admin proposes sweeping Title IX changes to undo Trump-era rules

US First Lady Jill Biden (R) listens to tennis legend Billie Jean King during an event to mark the 50th anniversary of Title IX at the Capital One Arena on June 22, 2022 in Washington, DC.

Nicholas Low | AFP | Getty Images

The Biden administration proposed sweeping changes to federal rules under gender equality law Title IX that would nullify the Trump administration’s mandate surrounding sexual misconduct, advocates for victims of discrimination who discriminated against, said advocates.

The new regulation would also ensure that Title IX’s ban on discrimination based on gender extends to sexual orientation and gender identity, providing historic protections to transgender students. The current Title IX regulation does not address the rights of transgender students.

The proposed rules could start a heated battle over the obligations of schools to address sexual misconduct, the balance between the rights of victims and accused students, and the rights of transgender students.

Education Secretary Miguel Cardona told reporters on Thursday, “Our proposed changes will fully protect students from all forms of sexual discrimination, limit some protections to just sexual harassment, and make clear that those protections include sexual orientation.” and discrimination based on gender identity.”

The proposed rules would retain some Trump-era mandates, such as ordering schools to hold an accused student innocent until the conclusion of the complaints process and allowing informal resolution of sexual misconduct complaints if both the accuser and the accused agree. Will continue to give

They would allow schools to use a clear and convincing evidence standard of evidence – which is typically around 75 percent certain – to determine whether an accused student violated sexual misconduct rules, but only Only when it is used by the school in cases of other discrimination, such as those involving racial harassment. Otherwise, schools must use the primacy of evidence standard, or about 51 percent fixed, the same threshold used in most civil lawsuits.

The proposal differs from current regulation in several ways, however, that college sexual misconduct cases will no longer require live hearings, will not require cross-examination at hearings and allow schools to investigate and punish attacks that are off-limits. -Take campus space. The proposed rules would also allow the investigator to decide the outcome of the case, but require that all Title IX coordinators, investigators and decision makers not have a conflict of interest or bias for or against complainants or respondents.

The Biden administration’s proposal would also allow schools to investigate and sanction sexual misconduct without a formal complaint.

For the next 60 days, the public will be able to submit comments on the proposed Title IX regulation. Each point will be required to be addressed in writing to the Department before the regulation is finalised. It is likely to take several months, if not more, to finalize the process.

But if Republicans win a majority in the House and Senate, lawmakers can use the Congressional Review Act to vote within 60 legislative days to overturn key rules issued by federal agencies.

Title IX, an element of the Education Amendment of 1972, prohibits discrimination on the basis of sex in any school that receives federal funding—which is nearly all—and federal courts have held that the law has to deal with allegations of sexual misconduct. Schools need to address this.

The Obama administration intensified the enforcement of Title IX in response to increased activism from college sexual assault survivors, who said schools were punishing attackers with slaps and failing to support victims.

However, conservative organizations, civil liberties groups and some law professors objected to the policies set by the Obama administration, complaining that they failed to protect due process in investigating the campus.

The Trump administration later spent much of its term building on a Title IX regulation enacted in 2020, which prescribed steps schools should take in response to allegations of sexual assault and to tighten the definition of sexual assault.

The regulation stated that schools were not allowed to open a Title IX case if an alleged assault occurred off-campus, that colleges were required to hold a trial to determine the guilt of an accused student, and several other provisions. could be considered in the middle tribunal. The rules for K-12 schools and colleges were heavily opposed by sexual assault survivor advocacy groups, civil rights organizations, and trade groups.

During the 2020 presidential campaign, Biden vowed to reverse the regulation.

US President Joe Biden talks about US vaccination progress after a visit to a District of Columbia Department of Health (DC Health) coronavirus disease (COVID-19) vaccination clinic, with remarks in the Roosevelt Room at the White House in Washington, US During, June 21, 2022.

Kevin Lamarck | Reuters

The Biden administration has said it is using a 2020 Supreme Court decision Boston vs. Clayton CountyWhich states that employees cannot be discriminated against in the workplace because they are gay or transgender, to guide its approach to LGBTQ rights in education settings.

Strengthening discrimination against transgender students as a violation of Title IX has attracted a number of new activist groups, many of which have emerged in the past two years amid a wave of fighting over race and gender within K12 schools. .

In April, 27 conservative activist groups sent a letter to Cardona expressing concern that the department’s plan for new Title IX rules would destroy due process protections for accused students and expand protections for gender identity “girls”. and rob women of equal athletic opportunities.”

The proposed regulation would not address who is allowed to join the men’s or women’s athletic teams. A senior department official said it expected to propose a separate rule regarding athletics, but could not say when that would happen.

“The department recognizes that standards for students participating in the men’s and women’s athletic teams are evolving in real time,” Cardona said.

More than 200 civil rights groups sent their letter to the department earlier this month urging it to make good on the administration’s promise to release new Title IX rules, arguing that sexual assault survivors, LGBTQ and pregnant students There is a dire need for protection and that the current regulation bars students from reporting allegations of misconduct.

“There are students who won’t go through the process, who are too afraid to go through the process, who don’t trust the process,” said Adele Kimmel, a victims’ rights attorney at the nonprofit Public Justice, signing one of the letters. group to do.

The current regulation imposed by the Trump administration has been a “nightmare” for schools as well, said Jackie Wernz, an Illinois-based attorney who advises schools on civil rights laws and federal mandates. That said, malpractice investigation requirements are highly prescriptive, and often conflict with state laws and union agreements.

“It puts schools in a catch-22 in which they have to figure out which law they want to violate,” Wernz said.

The Trump administration also eliminated a requirement that Title IX cases must be resolved within 60 days, instead requiring them to be completed in a reasonable amount of time. The new proposal will keep the same language.

Elizabeth Abinour, a Michigan-based attorney who represents students in Title IX cases, said she has had several instances in which it took schools more than a year to resolve an investigation.

“There’s no way to challenge that when the rule says the timeline has to be reasonable,” Abinor said.


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