Students Are a Little Safer With Biden’s New Title IX Regulations

In April, the Biden Administration released new Title IX regulations scheduled to take effect in time for the upcoming 2024-2025 school year. Title IX is an over 50-year-old federal civil rights statute responsible for ensuring gender equality within educational settings that receive federal funding. Among other things, Title IX protects students against hostile environments, such as those arising out of campus-based sexual misconduct and anti-LGBTQ bias.

Since 1974, the U.S. Department of Education has enforced Title IX regulations requiring federally funded educational institutions to provide “prompt and equitable” grievance proceedings to address complaints of sex discrimination, including those of sexual harassment and violence. These regulations originally lacked specificity, requiring the Department’s Office for Civil Rights (OCR) to issue guidance on what an appropriate grievance process should entail at the campus level.

In 2011 and 2014, among other things, President Barack Obama issued Title IX guidance requiring schools to specifically address campus sexual assaults rather than deferring these matters solely to law enforcement, and to do so within 60 days whenever possible. However, this guidance-based approach changed in 2017, when the Trump administration rescinded existing Title IX guidance to then amend the Title IX regulations for the first time in 2020.

As indicated in the Federal Register’s regulatory comments, the Biden administration found Trump-era Title IX regulations were “overly prescriptive” regarding certain aspects of campus-based grievance proceedings. The Trump administration had done so intentionally to protect those accused of misconduct over those who were victimized by it. As examples, it heightened standards for issuing interim suspensions and finding sexual harassment charges, while imposing mandatory dismissals for off-campus sexual misconduct incidents and requiring live cross-examination during certain Title IX hearings.

It also removed any standard for the promptness requirement to leave schools without any guidance. These regulatory changes not only deterred students from making formal complaints, but also emboldened institutions to prolong grievance proceedings to exhaust and further deter students from accessing the Title IX process.

Advocates were frustrated with the Biden administration’s year-long delay in issuing the new Title IX regulations, which have finally arrived to better protect students and are now facing legal scrutiny. While the Biden-era regulations balance due process for those accused of misconduct with the need to eradicate sex and gender-based discrimination, harassment, and violence within education, several Republican-led states have already filed lawsuits challenging the regulatory protections for LGBTQ students.

The outcome of these lawsuits will either help fuel or quell the ongoing “culture wars” within K-12 schools regarding the ability of minor students to freely express their chosen gender identity (as opposed to conforming to their assigned biological sex). On the horizon, the Biden administration will release more Title IX regulations addressing trans-athletes, which is a topic of ongoing controversy amongst policymakers.

For survivors of campus sexual misconduct, the new Title IX regulations undo some of the damage of the Trump-era rules by (1) ensuring former students and employees may file Title IX complaints when the accused is still at the educational institution, and allow such complaints to be made orally not just in writing, 34 C.F.R. § 106.2; (2) strongly endorsing the “preponderance of the evidence” standard for adjudications unless the educational institution uses the heightened “clear and convincing” standard for all comparable misconduct proceedings, 34 C.F.R. § 106.45(h); (3) reminding institutions to issue sanctions for misconduct as well as remedies to the victim and other affected students to address resulting hostile environments on campus, 34 C.F.R. § 106.45(h)(3); and (4) clarifying that retaliation is another form of prohibited discrimination under Title IX to ensure the same procedures are followed by schools for such reports, 34 C.F.R. § 106.71. By undoing some of the barriers to justice established by the Trump-era rules, the new Title IX regulations rebalance Title IX to better advance victim protections and eliminate abuse.

The 2024 Title IX regulations are not likely to change the ongoing legal battles surrounding campus sexual misconduct or LGBTQ rights, but they will certainly help students equally access education in the interim, as our nation keeps working toward safer learning environments for all. The real question now is around how OCR will enforce the new regulations given the high volume of pending Title IX complaints under the Trump-era regulations and limited funding by Congress for such efforts. For those invested in safer schools, our next steps must be to call congressmembers to demand increased funding for Title IX enforcement to continue ensuring ongoing gender equality with federally funded educational settings into the future.

Laura L. Dunn is an outspoken survivor of campus sexual violence and a nationally recognized expert and civil rights attorney who received a 2018 TED Fellowship. She is the Founding Partner of L.L. Dunn Law Firm, PLLC, a DC and NYC-based national law firm focused on advancing and enforcing victim rights and whistleblower protections in campus, criminal, and civil proceedings. Learn more at www.LauraLDunn.com.

The views expressed in this article are the writer’s own.