New Rules on Title IX

The Biden administration released a proposed Title IX rule Thursday featuring major overhauls to how colleges should respond to cases of sexual assault. The proposed rule also expands protections for LGBTQ students.

Title IX of the Education Amendments of 1972 is the law that protects students, faculty and staff from sex-based discrimination at education programs that receive federal aid. The proposed rule prohibits discrimination based on sexual orientation and gender identity, in addition to sex, on college campuses for the first time in history. That protection is expected to be attacked by many. During the Obama administration, LGBTQ students were protected under Title IX, but that was never added to the regulations.

The proposed rule also eliminates many of the Trump administration’s requirements for investigations of cases of discrimination, including cross-examination of witnesses, which many critics of the 2020 regulations said imposed burdens on victims of harassment. It also gives colleges more flexibility to develop their own grievance procedures and policies.

“Our goal was to give full effect to the law’s reach and to deliver on its promise to prevent all students from sex-based harassment,” said Miguel Cardona, education secretary. “Our proposed changes would fully protect students from all forms of sex discrimination, instead of limiting some protections to sexual harassment alone, and make those protections include discrimination based on sexual orientation and gender identity.”

Highlights of the Proposal

• Expands coverage to behavior that occurs in education programs off campus, including out of country. (The Trump administration required discrimination to be shown on campus.)
• Expands mandatory reporting requirements to all employees at colleges that operate an educational program who have knowledge of an instance of sex discrimination.
• Created new eligibility for retroactive complaints after a student leaves an educational program due to an instance of discrimination.
• Requires “prompt time frames” for investigating cases of discrimination.
• Elimination of cross-examination and live hearing requirement from the rules for campus hearings.
• Requires colleges to allow students who participate in a live hearing to do so remotely if they choose.
• Allows informal resolution of an incident without the submission of a formal complaint. (The Trump administration required a formal complaint.)
• Requires protections for pregnant students and employees.

The proposed guideline will undergo a period of public comment for the next 60 days. The administration will also engage in a separate rule-making process on student athletes due to the current evolving legal decisions on transgender students’ involvement in sports. Senior department officials said it is unclear when the process will begin.

The public comment period on the rules is expected to attract tons of comments and attention. It is expected that parts of the regulations will be challenged in court.