Title IX: Where it's been and where it's headed
President Biden campaigned on the promise to undo the Trump-era Title IX rule, which guaranteed new protections for students.
The Biden administration plans to announce a replacement rule in May 2022.
Note: The author of this piece served in the Department of Education during the Trump administration and was part of the team that announced the 2020 Title IX rule.
The Biden administration is making incremental progress at undoing the Trump-era Title IX rule, which advanced protections for students and attracted the ire of Left-wing interest groups.
Title IX is the law, enacted in 1972, that prohibits any educational program that receives federal funding from discriminating on the basis of sex.
Title IX requires colleges to ensure that their male and female students have equal opportunity to compete in sports, regardless of gender, and it mandates that colleges have a process for addressing complaints of sexual misconduct.
During the Obama years, the Department of Education sought to advance its Title IX agenda through a document called a "Dear Colleague Letter." Government agencies use Dear Colleague Letters to call attention to a policy issue and to make recommendations; these letters are not legally binding.
On April 4, 2011, the Department of Education’s Office for Civil Rights issued a Dear Colleague Letter to all colleges and universities that receive federal funding.
The letter stated that schools “must use a preponderance of the evidence standard” to adjudicate Title IX complaints. The preponderance of the evidence standard is satisfied when “it is more likely than not that sexual harassment or violence occurred.” It is a lower standard that “clear and convincing,” and much lower than “beyond a reasonable doubt.”
The letter also strongly recommended that colleges keep their Title IX processes under 60 calendar days. It also told schools not to rely on the outcome of a criminal investigation, saying, “A school should not delay conducting its own investigation or taking steps to protect the complainant because it wants to see whether the alleged perpetrator will be found guilty of a crime.”
In 2014, the head of the Office for Civil Rights told college administrators that she would pull federal funding from any college found repeatedly going against the recommendations of the Dear Colleague Letter, as reported by the Huffington Post. Catherine Lhamon, who was appointed to the position by then-President Obama in 2013, was nominated again by President Biden in May to serve in the same post.
Due process violations proliferated under the Dear Colleague Letter. A study published in 2020 in the New York University Journal of Legislation and Public Policy found that, since the publication of the Dear Colleague Letter, 151 accused students had sued their schools and won because their schools were found to have violated their legal rights.
To remedy this, then-Education Secretary Betsy DeVos rescinded the Dear Colleague Letter in Sept. 2017. In Nov. 2018, she set in motion the process to replace the letter with a rule that would carry the force of law.
The final rule, which was published in May 2020 and took effect in August of the same year, codified into law that both the accused student and the accuser must have the opportunity to examine the evidence against them and must answer questions in a live hearing.
The rule requires colleges and universities to protect survivors by offering them supports, such as class schedule changes or new dorm assignments, at no cost to the student.
Unlike in the system set up by the Dear Colleague Letter, colleges can now choose to use either the “clear and convincing” or the “preponderance of the evidence” standard, so long as they use one standard consistently across all Title IX procedures.
The left has accused it of being too friendly to accused students. Just shy of one month after the rule’s publication, 17 states and the District of Columbia sued to overturn it and filed a motion for injunction, which would have temporarily stopped the rule from taking effect.
President Biden campaigned on reversing the President Trump administration’s Title IX policies and restoring the policies of the Obama administration.
His campaign website stated, “The Trump Administration has rolled back important protections for student survivors by rescinding the Obama-Biden Administration’s 2011 Title IX guidance…The Biden Administration will restore the Title IX guidance for colleges, including the 2011 Dear Colleague Letter, which outlined for schools how to fairly conduct Title IX proceedings.”
On March 8, Biden issued an executive order directing Sec. Cardona to “review all existing regulations, orders, guidance documents, policies, and any other similar agency actions” pertaining to Title IX.
On April 6, the Department announced that it would take action to fulfill that executive order, including holding hearings about Title IX and setting the process in motion to propose a new rule to replace the one created by the Trump administration.
In July, a federal court remanded a provision of the rule, sending that piece of the rule back to the Department of Education for further consideration. The provision in question said that college Title IX officials must decide the outcomes of hearings based only on statements made by people who were willing to be cross-examined about them.
The rule states that if someone was not willing or able to attend the hearing, their statements could not be relied upon to make a decision. The next month, the Department of Education announced that it would no longer enforce that specific provision of the rule.
On Oct. 20, the Senate confirmed Catherine Lhamon as the Department of Education’s Assistant Secretary for the Office for Civil Rights, returning her to her previous post.
Cardona called her, in a statement, “one of the strongest civil rights leaders in America.”
The Department of Education plans to release a proposed new rule in May 2022.
Follow the author of this article on Twitter: @AngelaLMorabito