The U.S. Department of Education will soon release its proposed regulation on Title IX, the landmark federal law banning sexual violence and discrimination in educational settings. The Biden administration's rule will direct how colleges that receive federal funding should investigate and potentially punish sexual misconduct.
Campus sexual assault and Title IX proceedings took on new relevance under the Obama administration, which released guidance on the law in 2011.
Colleges, under a threat of having their federal funding revoked, cracked down on sexual misconduct — to a fault, some critics say. They argue the Obama-era guidance pressured institutions to find students accused of sexual violence responsible, even if it meant eschewing their due process rights.
Former Education Secretary Betsy DeVos believed this type of injustice plagued colleges' Title IX systems, leading her to release a new rule, effective August 2020, that created a judiciary-style method of evaluating sexual assault claims. Controversially, it allowed students accused of sexual violence and their accuser to question each other through surrogates.
Advocates for sexual assault survivors also said the DeVos regulation gave license to institutions to ignore these crimes and that it dissuaded reporting.
The Biden administration's draft rule will likely reverse many of the DeVos provisions. It's already been reported the rule will protect colleges from discriminating based on gender identity under Title IX, a legal interpretation the Trump administration rejected.
The regulation is due to be released this month. However, the Education Department has meetings scheduled to discuss it through May, which may suggest a delay.
We asked seven experts — lawyers, Title IX officials and a college president — to explain one provision they would like to see included in the new rule.
Their responses are below, lightly edited for clarity.
Founding partner of the L.L. Dunn Law Firm, advocate for sexual assault survivors
One provision that I would like to see is to only require schools to provide notice to an accused perpetrator upon bringing sexual misconduct charges rather than upon a mere formal complaint being filed, as currently required by the Trump-era rules.
The current Title IX rules not only give notice to an accused student before an investigation begins, which is not best practice for sexual offenses, but also give the accused an opportunity to prepare a defense days before ever being questioned. There is already a risk of retaliation against victims upon making a report and there are many offenders willing to engage in evidence destruction and witness tampering to avoid accountability out there, so the current Title IX rule has been damaging to schools' ability to meaningfully investigate and protect survivors on campus.Back to top
Partner at the Allen Harris Law firm, formerly senior fellow at the Foundation for Individual Rights in Education
It is particularly critical that the Biden administration's Title IX regulations continue to allow for informal resolution. This is a provision in the 2020 regulations that has had a positive impact on the way Title IX cases are resolved, particularly cases that stem not from allegations of forcible assault, but rather from the dissolution of relationships or from a misunderstanding between two parties (as many cases do).
Informal resolution often allows the complaining student to get the closure they need while also allowing the responding student to learn from an experience without having their entire future compromised. It is a tremendously useful provision and one that is absolutely essential.Back to top
History professor at Brooklyn College and Title IX researcher
Perhaps nothing in the current regulations provided a clearer contrast from Obama-era guidance than the provision allowing accused and accusing students to cross-examine adverse witnesses through a lawyer or adviser. The mandate has provided a particularly important protection for wrongly accused students who no longer must hope that a college employee will ask difficult questions that might challenge the accuser's version of events.
The provision also doomed the single-investigator model, given the model's incompatibility with cross-examination, thus eliminating a key source of unfairness in Title IX adjudications. And the creation of a more complete documentary record seems to have had a deterrent effect on schools plowing ahead with findings of responsibility despite strong evidence to the contrary — as occurred in earlier cases like Amherst, Brandeis, or Yale. Retaining this provision would be an important nod toward fairness.Back to top
President of Trinity Washington University, in Washington, D.C.
The case adjudication rules for Title IX sexual misconduct need simplification. Small institutions in particular do not have the large roster of administrative personnel that the regulations assume are available for training and adjudication of cases in the manner prescribed. The rules assume a level of sophistication with organizing hearings and assessing evidence that may be beyond institutional capacity.
Institutions also need greater ability to protect the identities and privacy of the victims of sexual assault than what the current rules permit. The Education Department should also alleviate the problem of the unfunded mandate that Title IX sexual assault rules became, and provide grants to support institutional initiatives to strengthen Title IX administration and education of the campus community.Back to top
Partner at Saul Ewing Arnstein & Lehr
I'd most like to see continued Education Department support for flexible use of alternative and adaptable resolutions.
Although there was much I didn't like in the prior administration's final rule, the flexibility to use alternatives to adversarial hearings has been an unmitigated win for students and institutions alike. In appropriate situations, it gives students valuable agency in determining, through consensus, how matters should best be resolved, and it gives institutions the ability to adapt their responses to the needs of their students. Any time an institution can respond to a student's Title IX concern in a way that leaves all parties feeling heard and avoids the need for a school to have to act like a court of law, it's a win. I hope the department keeps letting us get those wins where we can in this incredibly difficult area.Back to top
Chief compliance officer and deputy Title IX coordinator at Austin College
The Education Department should require mandatory employee reporting and accountability infrastructure at institutions. The department should follow a Texas law, which requires most college employees to report to the Title IX coordinator known sex discrimination, committed by or against a student or employee of the school.
Students could still have limited reporter options, such as going to counselors and medical staff, who may not share the names of reporters with Title IX unless given permission to do so. Texas law requires the coordinator to give quarterly reports to the college president, and then a yearly report to the board of the trustees that is also posted online. This consumer protection reporting system creates accountability at each level of the college's "responsible employee" administration. Implementing this rule can serve as a foundation of compliance, buffing colleges' defenses when accused of deliberate indifference. I would leave discipline for failure to report at the discretion of each college.Back to top
President of the Association of Title IX Administrators
The Education Department should move away from prescriptive standards and return to an approach of greater administrative discretion with respect to Title IX policies, procedures, and practices. I think regulations can and should offer guardrails, but the level of detail required by the Trump-era regulations stifles good practices, inhibits creativity, prolongs resolutions, enhances the administrative burden, is cumbersome for the parties to navigate, and often inefficiently layers on procedures just for the sake of procedures.
There is no reason to require a signed formal complaint, to define offenses, or to lock schools into formal resolutions that result in a hearing as the only path to resolve a grievance, unless everyone agrees to an informal resolution. Schools look to the government for the "what," but the government should be trusting schools to figure out the "how."Back to top