Title IX: What Will Happen to the New Rules When the Administration Changes?
| | Title IX, Title IX : News
To say that Title IX policies have been fluctuating over the last several years is a bit of an understatement. And now, even before the current administration’s policies have been fully implemented, we are about to experience another shift in leadership. The change in administration and political priorities is certain to affect Title IX policies, but the big question is how? And when should we expect policies to change? What should we do in the meantime?
While the legal team at Nesenoff & Miltenberg studies Title IX issues in a way few firms can match, even our top analysts do not have a crystal ball that can precisely predict the changes coming with regard to Title IX policies. But our experience allows us to make some educated guesses, and you know that we will eagerly follow each new development so that we can give our clients the best opportunities to protect their Title IX rights. Here are some predictions and factors to watch for in the coming months and how they fit into the overall scheme of Title IX.
Where We Are Now
To understand the flux with the current Title IX regulations and policies, it is helpful to look back at the evolution of the rules. Title IX of the Education Amendments of 1972 is a seemingly simple statute specifying that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The U.S. Department of Education developed rules and policies to implement the statute, and the most immediate effects were felt in the areas of women’s athletic programs.
Expansion of Discrimination
Courts also shaped Title IX policy, in large part by expanding the definition of “discrimination.” The term was broadened to include harassment, including unwanted sexual advances. Later, courts said that students seek monetary damages for Title IX violations and that they could sue individual teachers. In the late 1990s, the courts also determined that Title IX prohibitions covered actions taken by students as well as staff so that if one student discriminated against or harassed another based on sex, that student could file a Title IX complaint against the other student.
By 2011, many people felt that schools were not responding well enough to complaints of sexual violence on college campuses, so the Department of Education issued guidance to college administrators imposing an obligation to promptly and thoroughly investigate complaints of sexual violence or harassment as a violation of Title IX. The Obama administration specified that if a preponderance of the evidence showed a violation, then the accused student should be found responsible.
This is a much lower burden of proof than the standard used in criminal cases, where an accused individual must be found guilty beyond a reasonable doubt. Many more students pursued complaints for sexual misconduct, but students found responsible also complained that proceedings were unfair and did not give them an adequate opportunity to defend themselves. Courts often agreed.
Shift in Requirements to Provide Due Process Protections to Respondents
In 2020, the Trump administration revised Title IX rules to require full hearings before a student could be found responsible for a Title IX violation involving offenses such as sexual assault. This and other changes provided more due process protections for those accused but were criticized for placing too much of a burden on the victims of sexual assault.
Attempts at Revision and Expansion Hit Roadblocks
When the Biden administration took over, they pledged to make changes. However, they were slow to get the proposed new rules out and even slower to get them finalized, with the revised rules not scheduled to take effect until August 2024.
The new rules allow schools to adjudicate cases informally without a full hearing, essentially returning to many of the previous policies of the Obama administration. But, the changes that captured the most attention involved the expansion of factors protected from discrimination, including gender identity and sexual orientation. Many states immediately filed lawsuits to block the implementation of the new rules. Courts in some states agreed with assertions that the rules exceeded the scope of authority so that the new rules should not be enforced.
The result is that in some parts of the country, schools are required to establish policies to abide by the new 2024 rules, while in other parts of the country, schools are still operating under the 2020 rules.
Predictions for the Second Trump Administration
Before releasing the revised rules in 2020, the first Trump administration gave considerable attention to the issue of due process and other issues associated with Title IX adjudications on campus. They changed the rules to allow schools to use either the preponderance of the evidence standard or one that required a higher burden of proof, requiring that violations must be proven by “clear and convincing” evidence. The revised rules released by the Biden administration made it easier for schools to return to the preponderance of the evidence standard and to do away with live hearings with cross examinations and other due process protections.
As a new Trump administration takes the reins in 2025, it would be easy to rest on the strength of the work put into the 2020 rules and simply take them back to where they were at that time. This would also remove official Title IX protections for those discriminated against on the basis of sexual orientation or gender identity.
A Dedicated Title IX Attorney Can Help You Determine How to Proceed During Times of Uncertainty
If you need to file a Title IX complaint or defend against allegations of a violation, it can be very troubling to be uncertain about the regulations that will apply to your case, how the proceedings will be handled, and even what your rights are in the situation. Now more than ever, it is critical to seek the assistance of an expert legal team with a laser focus on Title IX issues.
At Nesenoff & Miltenberg, we know how to assess the appropriate rules that apply in your situation and we know how to protect you at each stage in the process. As always, we will analyze each new court case and every piece of administrative guidance to find the best opportunities to assert the Title IX rights of our clients.
If you’d like to learn more about the ways we could help you with a Title IX issue anywhere in the country, we invite you to schedule a confidential consultation by calling 212-736-4500 or reaching out online.