The U.S. Department of Education’s Office of Civil Rights (OCR) held virtual public hearings last week for comments on the Title IX rule entitled Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30,026 (May 19, 2020), pursuant to Executive Order 14021, Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity (the Order). The hearings focused heavily on adjudication procedures for Title IX violations, highlighting ideological tensions between those supporting greater protections for survivors and those advocating for greater rights for the accused.
Live commenters included survivors of sexual harassment and assault and their families, persons accused of sexual harassment and assault and their families, advocacy groups, professors, judges, coaches, and parents of transgender youth. Live comments spanned a range of viewpoints, with some advocating for a return to the Obama-era “Dear Colleague” standard and others hoping to keep the Trump-era regulations in place. A number of commenters also advocated for expanding Title IX to protect LGBTQ+ students explicitly . A transcript of the hearings will be available on the OCR website in approximately 30 days.
Comments relating to gender identity and sexual orientation centered on Title IX’s religious exemption and transgender and gender non-conforming students’ access to gender-affirming bathrooms, locker rooms, and participation in school sports.
Comments on sexual harassment centered on the procedural framework for adjudicating allegations of Title IX violations. Commenters addressed how the regulations define “sexual harassment;” the role of the live hearing and cross-examination requirement in the adjudicatory process; the role of advisers, including attorneys, in such hearings; the admissibility of evidence into an administrative record; the burden of proof; the role of police; the timeline of the investigation; the availability of alternative remedies; the jurisdiction of an educational institution; the knowledge and “deliberate indifference” standards for institutions; and protections against retaliation.
Overall, those advocating for broader, more survivor-friendly rules reported that the DeVos Rule, which we previously summarized here, has not reduced rates of sexual harassment in educational institutions. Rather, they believe the DeVos Rule has significantly chilled reporting. Those supporting the DeVos Rule applauded the Rule’s increased protections for respondents, suggesting that these protections have aided fact-finding in grievance hearings.
Defining Sexual Harassment
The 2020 DeVos Rule narrowed the definition of sexual harassment, requiring that conduct rise to a level a reasonable person “would find so severe, [and] pervasive, and objectively offensive that it denies a person equal educational access.” Many commenters supported broadening the definition of “sexual harassment,” stressing that the current definition is unduly harmful for students. Some preferred a return to the “Dear Colleague” definition of “unwelcome conduct of a sexual nature [that] creates a hostile environment if the conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s conduct.” Free speech and disability rights advocates, both in favor of keeping the current definition of “sexual harassment,” voiced concerns including that a broader definition could chill free speech, and could disproportionately implicate neurodiverse individuals with difficulty reading social cues and understanding appropriate interpersonal space.
Live Hearing and Cross-Examination
The current requirement for a live hearing with cross-examination and the role of advisers in adjudication proceedings also were hotly debated topics. Viewpoints on these procedures spanned from abolishing the requirements entirely, to modifying the procedures to reduce the risk of re-traumatization, to retaining a formal, court-like proceeding. Some advocating for changes to the hearing procedures requested all questioning be conducted ex parte by a neutral examiner. While some individuals noted that the DeVos Rule afforded more protections for students by mandating that both parties have an adviser for the hearing, others stated that this often leads to inequitable results as wealthy parties may have access to top attorneys while those with limited resources might only have a university-appointed advocate, who may have limited legal or procedural training.
A number of commenters discussed the optimal burden of proof and evidentiary rules. Some advocated that the burden of proof be a “preponderance of the evidence” rather than “clear and convincing evidence,” consistent with the standard in many other administrative proceedings. Other commenters noted that a finding of responsibility in a Title IX proceeding has lifelong consequences for a respondent, so the higher evidentiary burden of a “clear and convincing” standard must stay in the Rule. Commenters also supported the admissibility of all relevant available evidence. Currently, evidence, including statements, may be admitted to the record only if the party producing such evidence or making such statements testifies.
Many commenters took issue with the limited jurisdiction of educational institutions under the DeVos Rule, under which a student can only bring a Title IX claim if the sexual harassment occurred during an educational activity or program. Thus, many commenters—often survivors who sought recourse prior to the new rule—noted that their assault during an academic conference or study abroad program may no longer be reachable by Title IX.
Next Steps in Title IX Reform
The Order, which directed OCR to issue new guidance “[a]s soon as practicable,” requires OCR to summarize its review of existing policy and submit the summary to Director of the Office of Management and Budget by June 16, 2021. OCR announced it anticipates publishing a notice of proposed rulemaking in the Federal Register following last week’s hearings, in order to amend OCR’s Title IX regulations. Input shared by public commenters will inform OCR’s policy reform efforts, though how OCR will address the conflicting viewpoints in its policy proposals remains to be seen.
Schools and universities should expect relatively swift action from OCR in rolling out regulatory changes addressing the above-mentioned issues, as this has been a top priority of the Biden administration.
Attorneys in Ballard Spahr’s Education Industry Group will be tracking and reporting on changes as they occur. Our attorneys advise schools and universities on a wide range of education law issues, including Title IX compliance, and can help draft internal policies to comply with any promulgated changes.