On Friday April 19th, the Biden Administration issued new amendments on Title IX implementing regulations, a 1972 law that prohibits sex discrimination in educational programs that receive federal funding. From 1972 to 2020, Title IX was implemented without detailed regulations addressing sexual harassment or sexual assault. What guidance existed was in the form of “Dear Colleague” letters, that were not subject to judicial review. In 2020, the Trump Administration, repealed those Dear Colleague letters with binding regulations that have the force of law. In 2022, the Biden Administration proposed to repeal most of the reforms contained in the 2020 regulations
Under President Trump, Title IX sexual harassment regulations were codified for the first time in 2020. The 2020 amendments bolstered due process rights for accused students and relieved schools of some legal liabilities. The 2020 amendments also created rigid guidelines for how schools should conduct impartial investigations.
The new rules expand the ability of educational institutions to investigate sexual harassment complaints, guarantee protection under the law for LGBTQ students and employees, as well as remove some required parameters from earlier Title IX amendments, including live hearings and cross examinations.
Under the new 2024 amendments, the Biden administration expanded the scope of sex discrimination to include discrimination based on sexual orientation, as well as gender identity. One such example that may be considered harassment of an LGTBQ student is where a student is repeatedly referred to by a name or pronoun other than the one they have chosen by others. Additionally, new measures were added to clarify that discrimination based on parental, family or marital status is against the law. Pregnant or parenting students who might receive unwanted sexual attention, shame or punishment at schools will be guaraneed more protections from sex discrimination on campus. Notably, the new regulations are ambiguous about allowing or forbidding schools from outright bans on transgender athletes competing against biological females, leaving the controversial issue open to interpretation for individual schools. Transgender student athlete rights are the subject of a separate rulemaking proceeding.
Unlike other civil rights laws, where each university is free to design its own internal enforcement procedures, the Title IX regulations require very specific procedures for handling cases. This includes having a Title IX Coordinator who is separate from the staff that handles other non-Title IX conduct cases. Several changes were made to the grievance procedures for all Title IX complaints. In particular, the 2024 amendments require schools to use a preponderance of the evidence standard of proof to determine whether sex discrimination occurred. However, a school may use the higher “clear and convincing evidence” standard if that standard is also used in non-Title IX cases The new regulations also expand to cover those who have left the recipient’s education program or employment and allow them to make Title IX complaints after they have left. The new regulations also remove specific due process protections from the 2020 amendments. Schools will no longer be required to hold live hearings with both parties present, or cross examination by a party’s advisor.
Possible Next Steps
The changes will go into effect August 1, 2024. Before that date, litigation groups that challenge unconstitutional rules and laws are expected to take the Department of Education to court and seek an injunction preventing the rule from taking effect.
On the Cornell campus, the August 2024 deadline for amending Cornell’s Policy 6.4 to implement the revised regulations is causing conflict. When Cornell adopted the original Policy 6.4, Day Hall did so without adequately consulting with the shared governance bodies. This was true even though the Trustees had delegated to the University Assembly exclusive jurisdiction over campus codes of conduct and the campus judicial systems. In December 2020, the Trustees transferred this authority to the Vice President for Student Affairs.
Following the controversy caused by Day Hall enacting the Interim Expressive Activity Policy without prior consultation with the University Assembly or other shared governance groups, Day Hall agreed to have a broad-based committee work through these issues over the summer. However, Day Hall and the shared governance bodies have not addressed whether that group or some other group will take up what amendments, if any, will be made to Policy 6.4.
The rule is subject to the Congressional Review Act which gives Congress a 60-day window to repeal it.
