Another re-do for Title IX

The Department of Education proposed new Title IX guidelines for schools last week after a two-month delay. Announcing the proposal on the 50th anniversary of Title IX’s 1972 signing by President Richard Nixon, the department plans to reverse Trump-era policies. Critics worry about the new proposal’s implications for accused students, as well as for school policies concerning gender identity.

The rules in Title IX are designed to protect women from discrimination in education. Under President Donald Trump’s administration, Secretary of Education Betsy DeVos restructured Education Department guidelines concerning campus sexual assault hearings, outlining rules that required assumption of innocence during school investigations and live hearings that could include cross-examination.

The DeVos rules were established in response to Obama-era guidelines that critics said offered too few due process protections for students accused of sexual assault. But advocates for sexual assault survivors decried the changes, noting the trauma that victims could experience in facing their alleged attackers.

Last week’s proposal would largely roll back the DeVos standards. Colleges and universities could be required to investigate a wider range of complaints, and accused parties would no longer be entitled to a live hearing. Under the new regulations, colleges could designate a single school official who would both investigate a sexual assault complaint and make a ruling on the case — the so-called “single-investigator model.” Schools could potentially rule against an accused student as long as the evidence against him or her pointed to greater than 50 percent chance of guilt.

Laura Dunn, a founding partner of L.L. Dunn Law Firm in Washington, D.C. and a former member of the American Bar Association’s task force on campus sexual misconduct, pointed out that due process protections are separately addressed outside of Title IX. Student victims of assault, for example, can simultaneously go to the police with criminal charges against their attacker while working with the school to address campus safety concerns under Title IX.

However, Dunn plans to submit a comment critical of the single-investigator model, which some schools may choose to put in place to reduce expenses. “But it is not the best process for victims or accused,” Dunn said.

The sexual assault hearing regulations aren’t the only major change reflected in the Education Department’s proposal. The administration intends to officially expand Title IX protections to include sexual orientation and gender identity in its definition of discrimination. (The Obama administration made a similar move in 2014.)

Max Eden, a research fellow at the American Enterprise Institute, said the biggest problem with the proposal is its inclusion of gender identity within its definition of “sex.”

“This cuts ideologues in the Biden administration a blank check to socially reengineer how schools handle issues of gender and sex along whatever lines they want, at the end of the day,” he said.

Eden said the 700-page proposal does not specify what gender identity policies schools will need to change. But he added that the administration gives a clue to its agenda by including examples of school policies that won’t need to change, such as requiring the use of students’ preferred pronouns, allowing them to use the restrooms they prefer, and treating a child in accordance with his or her preferred gender without informing parents.

“Social affirmation is not a neutral decision for a school to make — it effectively amounts to a psychosocial medical treatment that is likely to increase the odds of the persistence of gender dysphoria,” Eden said, adding that it was “unconscionable” for schools to institute such social affirmation without informing parents.

The Education Department said it will issue guidance for transgender athletes’ inclusion in school sports at an unspecified later date. But Eden pointed out that the Biden administration’s stance on transgender athletes is no secret, particularly after the Department of Justice participated in a 2021 lawsuit against a West Virginia law that protected women’s sports.

The Title IX proposal is undergoing a 60-day comment period, sometime after which the department will issue its final guidelines.

The Foundation for Individual Rights and Expression (FIRE) plans to submit comments against the new rules, saying that the proposal “would gut essential free speech and due process rights for college students facing sexual misconduct allegations on campus.”