Today, the Biden Administration released its long-awaited overhaul of the Title IX regulations governing investigations of alleged sexual misconduct and sex discrimination in federally-funded education programs. The statement accompanying the release emphasizes the Biden Administration’s efforts to provide “appropriate discretion and flexibility to account for variations in school size, student populations, and administrative structures” within various institutions of higher education.
The regulations are scheduled to take effect August 1, prompting educational institutions across the country to revise their current policies in response to the sea change. The Department of Education has also put forth a summary of the major provisions in the revised regulations, a fact sheet covering major changes, and resource guide for educational institutions tasked with drafting compliant Title IX policies.
Key Points of the New Regulations Affecting Title IX Sexual Misconduct Investigations:
- Remove right to live hearing;
- Requires institutions to apply a “preponderance of evidence” standard unless institution uses “clear and convincing” standard in all discrimination investigations;
- Remove right to cross-examination;
- Permits “single investigator” model for Title IX investigations;
- Requires a process to determine credibility where “credibility is in dispute” via investigator questioning or cross examination;
- Require “equitable” treatment of Complainants and Respondents in Title IX decision-making;
- Retain presumption of non-responsibility for Respondents; and
- Parties must receive adequate notice of “allegations, dismissal, delays, meetings, proceedings, and determinations.”
Critics of the new policies governing institutional investigations of sexual misconduct note the marked reduction in due process protections for students that are at the heart of the Biden Administration’s changes. The new regulations place an already uneven playing field on even more tenuous ground, with the potential for a student making a complaint of harassment to never once confront the accused during a Title IX process. The regulations are slated to gut the hearing process and eliminate the right for an accused student to confront their accuser through cross examination. The regulations insert a requirement that the institution “challenge credibility” (if credibility is in dispute) with questioning that may be conducted solely by a single Title IX investigator. Proponents of the regulations focus on protecting potential victims, claiming that these changes will reduce the potential to retraumatize the alleged victims of sexual misconduct that may occur through their participation in live cross examination.
The “flexibility” provided by the new regulations also includes the ability for schools to revert to the “single investigator” model of adjudicating allegations of sexual misconduct, in which a single individual is tasked with both investigating and deciding the outcome of an institutional investigation of alleged sexual misconduct. This model also has the potential to favor complainants in Title IX investigations by permitting complainants to have the first and continuing opportunity to provide their version of events to the investigator and, by extension, to the decisionmaker. In a typical hearing process governed by the regulations currently in effect, a complainant and respondent would each present their testimony during the same hearing to a decisionmaker or panel of decisionmakers who are not familiar with the investigation.
Key Points of the New Regulations Affecting Pregnancy and Related Conditions:
- Require “reasonable modifications” for students based on pregnancy and related conditions;
- Provide required breaks for lactation and private lactation spaces;
- Require schools to provide information regarding protection against pregnancy discrimination and ensuring equal access to pregnant students;
- Requires maintenance of confidentiality related to pregnancy and related conditions.
Pregnancy discrimination is another area of focus in the Biden Administration’s overhaul of the Title IX regulations. The regulations add “termination of pregnancy” as a related condition for which students are protected against discrimination under Title IX, adding protections for students who seek reproductive healthcare related to abortion.
Key Points of the New Regulations Affecting LGBTQ+ Students:
- New regulations apply reasoning of Bostock v. Clayton County landmark supreme court case addressing LGBT discrimination;
- Schools must not separate or treat people differently based on sex in a manner that subjects them to “more than de minimis harm,” except in limited circumstances;
- Regulations add protections for transgender students and state that preventing someone from participating in school (including in sex-separate activities) consistent with their gender identity causes that person more than de minimis harm;
- Despite this addition, the regulations do not address sex-separate sports teams, specifically.
Earlier reporting on the new regulations claimed the potential inclusion of a provision that would eliminate bans against transgender students’ participation in sex-segregated athletics. The newly published regulations appear to have put off a determination of this issue for the time being, leaving transgender athletes with an uncertain future.
As always, KJK’s Student & Athlete Defense practice group is closely monitoring developments in the Title IX space. For more information, or to discuss further, please contact the authors.