The Biden administration on Thursday proposed new rules governing how schools must respond to sex discrimination, rolling back major parts of a Trump administration policy that narrowed the scope of campus sexual misconduct investigations and cementing the rights of transgender students into law.
The proposal would overhaul expansive rules finalized under former Education Secretary Betsy DeVos, which for the first time codified how universities, colleges and K-12 schools investigate sexual assault and harassment on campus. It would also broaden the roster of who is protected under Title IX, the federal law signed 50 years ago Thursday that bars discrimination based on sex in education programs or activities that receive federal funds.
“It is the Department of Education’s responsibility to ensure all our students can learn, grow and thrive in school no matter where they live, who they are, whom they love or how they identify,” Education Secretary Miguel Cardona told reporters Thursday morning.
The proposal is certain to set up a clash with conservative state and federal lawmakers and draw legal action from conservative groups that had already begun railing against the department’s position, issued last year, that transgender students were protected under Title IX. That announcement was based on a 2020 Supreme Court ruling that found that protections in the Civil Rights Act against discrimination in the workplace extended to gay and transgender people.
Civil liberties groups also anticipate legal challenges over issues of free speech and due process should the department drop certain provisions of the Trump administration rule that mirrored legal precedent established by the Supreme Court and lower courts.
The department said it would issue a separate regulation on how Title IX applies to athletics, including what criteria schools can use “to establish students’ eligibility to participate on a particular male or female athletic team.”
The Trump administration rules, issued in 2020, narrowed the definition of sexual harassment, expanded the due process rights of students accused of harassment and assault, relieved schools of certain legal liabilities, and required schools to hold courtoomlike proceedings called “live hearings” that allowed cross-examination of the parties involved. Those rules did not define “sex-based harassment,” per se, and the administration had taken the position that Title IX did not extend protections to those facing discrimination based on gender identity.
A fact sheet circulated by the Biden administration said that the new rules sought to “restore vital protections for students in our nation’s schools which were eroded by controversial regulations implemented during the previous administration.” It also said the Trump administration rules “weakened protections for survivors of sexual assault and diminished the promise of an education free from discrimination.”
The proposed rules will go through a lengthy public comment period before they are made final and take effect.
Biden, who helped craft contentious Obama-era guidance on how schools should investigate sexual assault and harassment that DeVos later scrapped, was among the most vocal critics of the DeVos rules. As a candidate, he vowed to put a “quick end” to them if elected.
The newly proposed rules were informed by a vast array of stakeholder input over a year and a half, officials said, including a nationwide virtual public hearing. They largely revert to the Obama-era approach; Obama’s administration never drafted formal rules on the issue, but issued guidance documents in 2011 and 2014 that attempted to capture the entire universe of sexual harassment claims and remedies, and the department’s enforcement purview.
Critics of the Obama-era guidance, including college leaders, have said schools felt pressured to side with accusers without extending sufficient rights to the accused. Since then, dozens of students have won court cases against their colleges for violating their due process rights.
The rules proposed Thursday were widely viewed as a victory for critics of the Trump-era rules, particularly by advocates for sexual assault survivors, who had assailed the Trump administration rules as too stringent and potentially traumatizing or obstructive for victims.
Emma Grasso Levine, manager of Know Your IX, a youth-led victims’ rights group, said in a statement that the organization was continuing to see survivors “experience punishment, retaliation, and be pushed out of school due to the anti-survivor 2020 regulations.”
“It cannot be overstated how much student survivors need these Title IX rule changes to ensure fair grievance processes, and guarantee that survivors’ education is not further interrupted by the impacts of sexual violence,” she said.
The proposal expands the definition of what constitutes sexual harassment and the types of episodes that schools are obligated to address and investigate – to include, for example, incidents that took place off campus or abroad, as well as incidents that create a “hostile environment.” The new rules would also roll back the most controversial of DeVos’ rules and make live hearings and cross-examination optional rather than required.
The proposal retains aspects of DeVos’ rules – which drew more than 120,000 public comments and unsuccessful legal challenges – that emphasize the presumption of innocence, fair and unbiased investigations, and equitable rights of accused and accusers.
Still, the proposal “has flaws that sets it up on a collision course with the courts,” said Joe Cohn, legislative and policy director at the Foundation for Individual Rights and Expression, a non-partisan civil liberties group.
Cohn said that the administration’s backtracking on live hearings and cross-examinations, as well as its deviation from the Supreme Court definition of sexual harassment used by DeVos, ignore free speech and due process rulings that have already found such measures essential to Title IX case deliberations. The rule also reinstates a “single investigator” model that courts have found problematic, he said, under which one person acts as judge and jury.
“This rule acts as if that body of case law does not exist,” Cohn said. “They need to make significant revisions if they want the regulation to survive.”
The proposal, predictably, divided congressional lawmakers along partisan lines. Sen. Richard Burr, R-N.C., the ranking member of the Senate Education Committee, said the proposed change made clear “the administration is placing accusations of guilt above fair consideration of the evidence.”
Sen. Patty Murray, D-Wash., chair of the Senate Education Committee, called the proposal “a world of change from the backward DeVos rule, which made it easier for schools to sweep harassment and assault under the rug, and harder for survivors to come forward, seek justice, and feel safe on campus.”
The Biden proposal to define sex-based discrimination and harassment to include “stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity” is likely to become the bigger lightning rod.
On Thursday, 17 state attorneys general, led by Austin Knudsen of Montana and Todd Rokita of Indiana, sent a letter to Cardona vowing to fight “proposed changes to Title IX with every available tool in our arsenal,”
Such protections would make more explicit schools’ responsibilities to transgender students, settling ongoing debates about their right to use bathrooms marked for the gender they identify with; dress the way they prefer; be referred to by their preferred pronouns; and be protected from gender-based bullying.
They would also help blunt the growing efforts to “erase the existence” outright of LGBTQ youth taking place across the country, said Jennifer Pizer, acting chief legal officer for Lambda Legal, one of the nation’s oldest civil rights organizations representing the LGBTQ community.
“It’s an immeasurably huge step forward,” she said, adding that “clear, powerful statements of support with concrete action steps required from the federal government could not be more timely.”
The rules come as a debate over transgender students’ participation on sports teams roils statehouses and school boards across the country. In recent years, Republican-dominated legislatures in at least 18 states have introduced restrictions on transgender participation in public school sports, and at least a dozen states have passed laws with some restrictions. On June 19, FINA, swimming’s world governing body, essentially prohibited transgender women from competing at the highest levels of women’s international competition.
Conservative groups have denounced the Biden administration’s efforts to include gender identity protections in laws across several agencies as government overreach that undermines the rights Title IX sought to further.
“Fifty years of protections for women and girls in school activities are about to be wiped away because the Biden administration embraces woke gender ideology over basic human biology,” said Kevin Roberts, president of the Heritage Foundation, a conservative think tank, in a statement Thursday.
The proposed rules do dictate that “preventing someone from participating in school programs and activities consistent with their gender identity would cause harm in violation of Title IX” but do not directly address the issue of denying transgender students the opportunity to play on sports teams that correspond to their gender identity.
“The department recognizes that standards for students participating in male and female athletic teams are evolving in real time,” Cardona said. “And so we decided to do a separate rule-making on how schools may determine eligibility while upholding Title IX’s nondiscrimination guarantee.”
The rules also come after a handful of incidents reported in recent weeks that signalled hostility toward schools that have sought to uphold the rights of transgender students.
Last month, a Wisconsin school district shut its schools down – several other buildings in the town had to evacuate – after it received multiple bomb threats in response to its investigation of a Title IX complaint made by a transgender student. Last week, a father was arrested and charged with making threats against a Vermont school district after he said he would “show up and kill somebody” if his child was approached by a transgender person at school, according to VTDigger, an online news outlet.
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