Author: Katherine Knott
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Higher education associations generally like Education Secretary Miguel Cardona’s new regulations for Title IX of the Education Amendments of 1972 but want more clarity about how the changes would be carried out, as well as more time to put policies in place.
“It is critical that the final regulations are sufficiently flexible to be effectively implemented across diverse institutions, reflect a sensible level of simplicity, and provide clarity about federal expectations for institutions and their community members,” the American Council on Education wrote in a letter to the U.S. Department of Education on behalf of nearly 50 organizations, including the Association of American Universities and NASPA: Student Affairs Administrators in Higher Education.
The letter was one of more than 235,000 comments sent to the department about its proposed regulations during the 60-day comment period, which closed Monday. Comments came from a range of associations and advocacy organizations as well as parents, grandparents, students and others.
The department will review the comments before releasing a final set of regulations for Title IX, a law aimed at protecting students in all levels of education from sex-based discrimination. When the Title IX rules were overhauled during the Trump administration, the department’s Office for Civil Rights needed nearly a year and a half to review more than 124,000 public comments on the issue and finalize the regulations that went into effect August 2020.
Cardona proposed significant changes to those regulations earlier this summer that would once again change how colleges investigate reports of sexual assault, make it easier for victims to report sexual harassment, end the requirement for live hearings and expand protections for LGBTQ+ students, among other changes.
The proposed regulations also would expand the definition of sexual harassment to include unwelcome conduct that’s “sufficiently severe or pervasive.” The current sexual harassment standard is unwelcome conduct that’s deemed “severe, pervasive, and objectively offensive.”
Critics have said the changes would roll back due process rights for those accused of sexual misconduct.
ACE said in its letter that the organization and the signing associations supported provisions rolling back the requirement for live hearings and cross-examinations by advisers as well as the flexibility offered to institutions via other changes such as allowing campuses to use an informal resolution process.
“The current regulations, revised in 2020 during the Trump administration, have been problematic and in many cases have turned campus disciplinary processes into adversarial court-like tribunals,” ACE wrote in its letter.
The National Women’s Law Center said in a news release that the proposed rules were “a step in the right direction” but urged the Biden administration to go further, including by requiring colleges to use the preponderance-of-the-evidence standard in Title IX investigations, which means the evidence shows that it’s more likely than not that the allegations are true. The current proposal allows colleges to use the higher clear-and-convincing standard if it’s used in all other comparable proceedings.
“We appreciate that the Department of Education is taking steps to undo the previous administration’s harmful changes to the Title IX regulations by proposing new regulations to effectuate the law’s broad and remedial purpose, as Congress intended when it passed Title IX in 1972,” the NWLC wrote in a letter signed by 189 advocacy organizations. “At the same time, we note that the department’s proposed regulations do not reach far enough in protecting against sex discrimination in education.”
The Foundation for Individual Rights and Expression, a free speech organization, said in its formal comment that the proposed rules are “a significant step backwards” from the current regulations, and that they are unconstitutional. The organization took issue with the decision to eliminate the live hearing requirement, the changes to how harassment is defined and allowing a single investigator to investigate and adjudicate complaints.
FIRE predicted in its letter that if the proposed changes were carried out, they would lead to “another spike in expensive-to-defend Title IX litigation—most of which would be avoided if schools were instead required to comply with the current regulations’ protections for free speech and due process.”
“FIRE also questions the wisdom, necessity, and justification for replacing the 2020 Title IX regulations, which have been in effect for less than two years,” the letter says. “For much of that time, many students were absent from campus due to COVID-19. Given the short and unusual tenure of the current regulations, it is impossible to believe that the department has already amassed sufficient data to demonstrate a need for this comprehensive overhaul.”
Gender Identity Protections Controversial
Not all the submitted comments were posted by Tuesday, but many of the recent submissions focused on one of more controversial aspects of the new regulations: the expansion of protections against sex-based discrimination and harassment to include sexual orientation and gender identity. The proposal follows a wave of states adopting laws governing access to sports programs and educational facilities for transgender students and limiting discussions about sexual orientation and gender identity in the classroom.
The department is planning to issue a separate notice of proposed rules governing transgender students’ involvement in sports.
A coalition of 17 Republican state attorneys general, led by Montana’s Austin Knudsen, argued in a letter that the new definition for sex discrimination exceeds the department’s statutory authority, could eliminate single-sex facilities and could deny female athletes an equal athletic opportunity, among other ramifications. Knudsen’s letter makes similar points to many of the recent comments.
“With this proposal, the rule would make it unlawful for a school to deny participation in any education program or activity consistent with a student’s ‘gender identity,’” the letter says. “These changes constitute a stunning affront to the purpose of Title IX, which is to provide equal access to education and prohibit denial of education benefits and opportunities on the basis of sex. ‘Sex’ means what it has meant since the beginning of time: the immutable fact of being male or female.”
Knudsen also argued in the letter that the expanded definition of sexual harassment and other changes to the Title IX regulations could chill free speech on college campuses and negatively affect academic freedom as well as campus life.
“When combined with the department’s proposed changes to the current due process protections, the proposed rule will chill protected speech—allowing unscrupulous students and ideologically biased bureaucrats to weaponize Title IX against those with whom they disagree on hotly contested issues of political, societal, religious, and moral importance,” Knudsen wrote.
Under the proposed regulations, preventing someone from participating in an educational program or activity consistent with their gender identity would violate Title IX. Colleges and universities that receive federal funding are allowed to separate students on the basis of sex in limited circumstances as long as such treatment doesn’t cause more than de minimis, or insignificant, harm.
“The proposed rule’s inclusion of this new de minimis harm standard, which is not defined and has no basis in the statutory text, will result in significant confusion for campuses,” ACE wrote in its letter.
ACE recommended that the department delete the de minimis harm standard from the final regulations. At a minimum, ACE wants more information about the types of facilities that must be made accessible consistent with an individual’s gender identity, how the rule would apply to sex-separated living facilities and housing assignments, and the application of this standard in other sex-segregated programs and activities.
Over all, ACE is hoping that this round of Title IX changes will “stop the churn of perpetually changing rules.”
“We sincerely hope the current regulatory effort will put an end to the costly and confusing changes in regulatory requirements that have marked the last decade,” the ACE letter says. “We urge the department to adopt this three-part focus on flexibility, simplicity, and clarity as its lodestar while it considers comments to the [notice of proposed rule making] and refines the proposed regulations. A final rule that provides a more flexible regulatory structure and takes into account these values will make future swings of the regulatory pendulum less likely.”