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Amid Growing Political Pressure, the Biden Administration Delays the Release of Title IX Regulation Yet Again

In the 2020 election campaign, then-candidate Joe Biden promised voters that he would bring a “quick end” to the Title IX regulations promulgated under the Trump administration. He is reported as saying in May of 2020 that the rules allowed colleges to “ignore sexual violence and strip survivors of their rights.”

It now seems like it will take nearly 4 years—or more–for that campaign promise to become a reality. The administration quietly released a notification that the release of the final rules is now delayed until March of 2024. Since the proposed rules were released in the middle of 2022 with final rules originally anticipated in the spring of 2023, this additional delay is proving to be extremely frustrating for some students and advocates.

The Recent Title IX Roller Coaster

For decades after the enactment of Title IX, the focus of the legislation and regulations centered around college athletics. Then in April of 2011, the focus abruptly shifted to the handling of sexual harassment on campus. The Department of Education released guidance specifying that a single incident of sexual misconduct could create a hostile educational environment in violation of Title IX. 

In the following years, further guidance and well-publicized investigations triggered a legal backlash that often left schools struggling to understand how to create procedures that offered rigorous protections to some students without violating the due process rights of others. The Obama administration also published guidance regarding Title IX protections of transgender students, including allowing the use of restrooms that aligned with gender identity.

The Current (and Soon to be Former) Title IX Regulations

During the Trump administration, the Department of Education withdrew the previous administration’s guidelines regarding both the protections afforded to transgender students and the handling of Title IX sexual abuse cases. Then they initiated a full rulemaking procedure to overhaul Title IX rules to include additional due process requirements for students accused of sexual misconduct. The Department also released interim guidance changing standards and procedures.

Near the end of 2018, draft regulations were released for public comment, and 120,000 comments flooded in, mostly opposing the proposed changes. In May of 2020, the Department released the final rules, largely based on the proposed rules. Among the changes was a rule requiring colleges to hold a live hearing before ruling on sexual misconduct cases along with the opportunity for complainants and respondents to cross-examine one another through an advisor. 

In addition, the rules gave schools the choice to use a stricter standard when adjudicating sexual assault cases. Instead of the “preponderance of the evidence standard,” schools could require a violation to be proven by “clear and convincing evidence.” This would make it more difficult to find an accused student responsible.

Predictably, advocates speaking for students filing complaints objected to the tougher standard, arguing that it made it easier for wrongdoers to get away with misconduct while advocates representing students responding to complaints praised the new standards as fairer and removing the “presumption of guilt” that many respondents complained of.

New Administration, New Policies

Soon after the Biden administration took over in 2021, the Education Department began a formal evaluation of the 2020 Title IX rules. They issued guidance, such as that stating that Title IX protected students on the basis of sexual orientation and gender identity. At the end of the year, they announced proposed new Title IX rules would be released in April of 2022. But in April, the Department reported it would delay the release until May. In May, the Department pushed the release back until June.

Then, finally, the proposed new rules were released in June of 2022 to coincide with the 50th Anniversary of Title IX implementation. The proposed rules did not address the participation of transgender athletes at either the college level or K-12 level, which would be handled in a separate rulemaking proceeding. Even with those issues off the table, the floodgates were overwhelmed with comments. During the 60-day comment period, the Department received over 210,000 comments. In January of 2023, the administration announced that the final rules would be released in May. In April the Department released a proposed rule on team participation by transgender athletes, but in May the only announcement was a delay in the release of final rules until October of 2023, citing the receipt of over 240,000 comments on the initial rulemaking and an additional 150,000 comments on the issue of transgender students participation.

That month came and went quietly. With rumors of a potential government shutdown, speculations of additional delays were rife. The Department made no formal announcement. But near the end of 2023, administration paperwork showed that the final action on the Title IX rulemaking is now scheduled for March of 2024.

Recap of the Proposed Rules

When announcing the proposed new rules, the Department placed substantial emphasis on the “historic” protections provided to LLGBTQIA+ students and students affected by sexual harassment and assault. The rules will officially apply Title IX anti-discrimination protections to students discriminated against on the basis of gender identity or sexual orientation. 

With regard to transgender athletes, the rules would not allow states or districts to create a categorical ban against transgender students participating on a team that aligns with their gender identity. However, the rules would be likely to allow sex-related criteria that limits the participation of some transgender students, particularly at the high school and college levels.

Rules regarding the procedures schools must follow when investigating and adjudicating cases of alleged sexual harassment, discrimination, and assault would also change significantly if the proposed rules are adopted. The new rules would return to the preponderance of evidence standard as the burden of proof so that the school would need to show only that it was “more likely than not” that the alleged actions occurred in violation of Title IX. In addition, the live-hearing and cross-examination requirements would be eliminated, and schools would be permitted to use a single party or tribunal to conduct the investigation and rule on the outcome.

Duffy Law Can Assist with the Interpretation of Current Standards or the Application of the New Rules

During the rulemaking process, the political administrations in power often issue interim guidance that effectively changes the application of the current rules, so it can be challenging to know what standards apply at any point in time. However, at Duffy Law, we focus our practice on the protection of students’ rights under Title IX, so we follow every nuance of guidance and court interpretation to help students protect their rights in on-campus proceedings as well as in court.

We invite you to schedule a confidential consultation to discuss any concerns you have about a Title IX issue, regardless of which set of rules may apply. We can provide guidance, representation, and advice to help you achieve your goals.

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.