Know Your IX
The Biden administration is planning to release the final set of regulations for Title IX of the Education Amendments of 1972 next month, and a coalition of more than 120 gender justice and survivor advocacy organizations are urging the department to stick to that timeline.
“The Trump-era regulations create incredible barriers for students who have experienced sexual assault to seek and achieve justice for what happened,” said Tracey Vitchers, executive director of It’s On Us.
It’s On Us was one of 124 organizations that signed the letter as part of the #EDActNow campaign. The letter was released Tuesday—12 years to the day since the Obama administration detailed colleges’ and universities’ responsibilities under Title IX related to sexual violence in a Dear Colleague letter. April also is Sexual Assault Awareness Month.
“We really see the Biden administration releasing their rule by May as crucial to interrupt the harm that students are experiencing under the Trump administration’s Title IX regulation,” said Emma Grasso Levine, manager of Know Your IX, a survivor- and youth-led project of Advocates for Youth, a nonprofit that also signed the letter.
They argue in a letter sent to the White House Tuesday that a delay in releasing the final regulations could hinder colleges’ and universities’ ability to carry out the new regulations before the next academic year or lead to another year with the current rules in place. Those rules, put in place during the Trump administration, have had “devastating impacts on student survivors,” the organizations wrote. Supporters of the Trump-era rules have urged the department to reverse course.
Levine said Know Your IX and other organizations are concerned that the department will miss the May deadline, particularly after its separate rule governing transgender students’ involvement in sports was delayed. The department planned to release that rule in December but sent it to the Office of Management and Budget for review last week.
The final rule for Title IX has not been sent to the OMB yet for review—another point of concern for advocates.
Levine said that the Education Department’s Office for Civil Rights, which is rewriting the Title IX regulations, is understaffed, underfunded and has done as much as they can to finish the rules by the summer.
“But we are concerned that the White House is not going to support them in carrying it across the finish line,” she said.
The rewrite has been contentious with several groups arguing for the Biden administration to keep the current rules in place; the department received more than 235,000 comments on its proposed overhaul. Those opposed to the changes cited the increased protections and support services for student accused of sexual misconduct or harassment in the Trump-era rules and said the Biden administration’s proposal would deny those who are accused due process.
The department has to review and respond to substantive comments before releasing the final rule. A department spokesperson said the agency “is committed to equal educational opportunity for all students.”
The Biden administration proposed changes that would once again change how colleges investigate reports of sexual assault, make it easier for victims to report sexual harassment, end the requirement for live hearings and expand protections for LGBTQ+ students, among other changes.
The proposed regulations also would expand the definition of sexual harassment to include unwelcome conduct that’s “sufficiently severe or pervasive.” The current sexual harassment standard is unwelcome conduct that’s deemed “severe, pervasive and objectively offensive.”
Institutions also could decide whether to use the preponderance-of-the-evidence standard, which means the evidence shows that it’s more likely than not that the allegations are true, or the higher clear-and-convincing standard if it’s used in all other comparable proceedings.
“We’re encouraged to see strengthened protections for survivors and for LGBTQ students and also for pregnant or parenting students,” Levine said. “We’re also encouraged that students who experience sexual violence off campus are able to access resources, which isn’t currently guaranteed under the current rules.”
When the Title IX regulations were last rewritten during the Trump administration, the rules were released in May 2020 and went into effect in August of that year. The organizations say the Biden administration should follow a similar timeline. Higher education associations have asked for at least eight months to come into compliance with the new rules.
“It’s understandable why institutions want ample time, because they’ve had to go through multiple changes to their policies and procedures in just the last few years,” Vitchers said.
She added that it would be “incredibly difficult” for institutions to update their policies if the regulations aren’t issued before the start of the new academic year. A delay in the new rules could lead to “mass confusion” among students, faculty and staff.
Vitchers said carrying out the final rule won’t be “as simple as writing a new policy and putting it on your website.”
She said making the changes as proposed last summer would require shifting policies and procedures, staff time, and money.
“There’s so much work that has to go into any of these regulatory changes around Title IX at an institutional level, and schools really deserve the summer to make sure that they’re able to get these processes and new policies in place correctly,” she said.
Kenyora Parham, executive director of End Rape on Campus, said the process of rewriting the Title IX regulations has been a “a very lengthy and exhausting process.” The latest #EDActNow campaign launched in fall 2021 to push the Biden administration to roll back the Trump-era rules.
Parham said it is important that the administration follows through on its promise to finalize the rule by May. Otherwise, students will remain in a “Title IX limbo.”
“Students can’t wait, and this administration really needs to act now,” Parham said. “We can’t have another year of students’ basic civil rights being denied. They deserve an education that’s free from violence.”