Biden Eyes Changes to Title IX

• Public hearings open a federal review of how colleges handle sexual assault cases.
• President Biden has vowed to reverse Trump-era rules that critics say favor the accused.
• Courts have affirmed students' rights to due process, but changes to the law could take years.

The Department of Education held virtual public hearings this week amid its comprehensive review of Title IX rules under an executive order by President Joe Biden. The virtual hearing allowed students, parents, educators, and advocates to weigh in on how colleges and universities handle sexual misconduct cases.

Title IX forbids sexual harassment or violence at schools receiving federal money. With persistently high rates of rape and sexual misconduct on U.S. campuses, Title IX rules assign colleges the roles of sexual assault prosecutors and juries.

Historically, federal courts left student sexual assault allegations up to colleges. In recent years, however, courts have quarreled with colleges' verdicts. More than 500 accused students have filed lawsuits against their colleges in the last decade. Just over half of the court cases ruled in favor of the students.

More than 500 students accused of sexual misconduct have filed lawsuits against their colleges in the last decade. Just over half of the court cases ruled in favor of the students.

According to federal courts, colleges must offer accused students greater due process. In May 2020, the Trump administration added criminal court standards to Title IX rules, including a higher bar for proof and a cross-examination of plaintiffs and defendants.

Victims rights activists say the new requirements walk back progress, inhibiting students from coming forward and protecting the accused. As a presidential candidate, Biden vowed a quick end to the changes if elected, but his administration may face limits on what it can do.

Federal courts affirmed students' right to due process after a three-year rule-making process. Further revisions could similarly take years.

How Biden Wants to Change Title IX

Biden's rewrite of Title IX regulations looks to reinterpret "sex discrimination" to include orientation and identity and reverse Trump-era rules on how colleges handle sexual misconduct.

By calling out the 2020 amendments to Title IX, Biden's executive order signals a return to the unofficial Title IX guidance issued under President Barack Obama. The Obama administration's 2011 "Dear Colleague" letter urged schools to believe victims and not delay in bringing them justice.

The guidance reduced the standard of proof to a "preponderance of the evidence," or 50.01% — more likely than not. It also placed responsibility on school employees if they "reasonably" should have known of abuse, including when the abuse took place off campus.

Biden's rewrite of Title IX regulations looks to reinterpret “sex discrimination” to include orientation and identity and reverse Trump-era rules on how colleges handle sexual misconduct.

Trump's Department of Education raised the standard of proof to "clear and convincing" and guaranteed due process to accused students, no matter how long the process takes. The current rules also narrow colleges' responsibility: Schools must have "actual knowledge" of Title IX allegations and show "deliberate indifference" to be found in violation.

Now, just one year after the Department of Education announced new Title IX regulations, it's getting ready to rewrite them. The current rules passed through a public comment period, and the Biden administration's proposed changes must do the same.

What appears to be a volley of rule changes belies the long timeline of writing policy and putting policy into practice. Some schools have still not implemented last year's Title IX changes. Others may cleave to Trump's version even if Biden accomplishes his rewrite, based on the interpretation of local courts.

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