Proposed Title IX Changes from the Biden Administration

In this article we discuss the Proposed Title IX Changes. Submitted on the heels of the 50th anniversary of Title IX, the informal resolution process would make it less abrasive for the students and employees.

What is Title IX, in a nutshell?

2022 is the 50th Anniversary of the landmark legislation Title IX of the Education Amendments of 1972, colloquially known as “Title IX.” If you are unfamiliar with Title IX, generally its original intention was to prohibit sex-based discrimination in any school or educational program that received federal funds in support of its programs. Title IX has evolved into so much more than that and is paramount legislation in ensuring equality and safety in educational settings. 

Proposed Title IX Changes

In conjunction with the 50th anniversary, the U.S. Department of Education (DOE) recently released its proposed amendments and changes to Title IX for public comment. The DOE itself summarized the changes as follows:  “The proposed regulations would:

• Clearly protect students and employees from all forms of sex discrimination.
• Provide full protection from sex-based harassment.
• Protect the right of parents and guardians to support their elementary and secondary school children.
• Require schools to take prompt and effective action to end any sex discrimination in their education programs or activities – and to prevent its recurrence and remedy its effects.
• Protect students and employees who are pregnant or have pregnancy-related conditions.
• Require schools to respond promptly to all complaints of sex discrimination with a fair and reliable process that includes trained, unbiased decision makers to evaluate the evidence.
• Require schools to provide supportive measures to students and employees affected by conduct that may constitute sex discrimination, including students who have brought complaints or been accused of sex-based harassment.
• Protect LGBTQI+ students from discrimination based on sexual orientation, gender identity, and sex characteristics.
• Clarify and confirm protection from retaliation for students, employees, and others who exercise their Title IX rights.
• Improve the adaptability of the regulations’ grievance procedure requirements so that all recipients can implement Title IX’s promise of nondiscrimination fully and fairly in their educational environments.
• Ensure that schools share their nondiscrimination policies with all students, employees, and other participants in their education programs or activities.”

Title IX Reporting & Issues

Mandatory Dismissal Requirements, Live Hearings, and Cross-Examination

There is a lot to unpack here.  And to substantively discuss all these changes would take more space that we can possibly allocate for this blog, but there are some particularly important highlights when it comes to the actual process involved in resolving Title IX disputes.  While the prior administration was pushing towards a more formalistic approach in reporting and resolving Title IX complaints, there was great concern that making Title IX proceedings more closely resemble court proceedings could have a substantial effect on reporting.  The proposed Tile IX changes directly reflect this concern.  A portion of the relevant provision is as follows:

Recipients expressed concern that the mandatory dismissal requirements, live hearing, and cross-examination requirements were having a chilling effect on students who might otherwise report sex-based harassment. The Department therefore has good reason to believe that many recipients would appreciate the flexibility the proposed regulations would afford them to better fulfill their obligation not to discriminate based on sex in their education programs or activities. For example, the proposed regulations would enable recipients to tailor procedures to be effective at addressing sex discrimination in their educational environment by providing an option to conduct live hearings with cross-examination or have the parties meet separately with the decision maker and answer questions submitted by the other party when a credibility assessment is necessary; an option to provide the parties an opportunity to review all relevant evidence instead of being obligated to produce a written investigative report; an option to offer informal resolution when appropriate without having to wait for a complaint to be filed; and an option to dismiss complaints when appropriate rather than an obligation to dismiss in specific circumstances. [Source]

Title IX Informal Resolution

As emphasized above, the proposed changes embrace informal resolution and even propose to allow it prior to the filing of a formal complaint.  The simple fact is that every Title IX dispute is different.  They involve different personalities, different emotional flash points and these proposed changes directly reflect the necessity of allowing flexibility in the process to improve outcomes.  There can be little doubt that that specter of requiring a formal investigation and hearing will chill the number of complaints that are actually filed.  That is an exceedingly poor result.  Poor for the schools, poor for the students, poor for all parties in interest.  But if there are substantive alternatives to formal proceedings, the comfort level with reporting will likely increase dramatically.  

Universities Harbor a Growing Sensitivity to Being the Judge, Jury, and Executioner

Regardless, there will always be some trepidation if there is a perception that the school remains judge, jury and executioner, even if the proceeding is less formal than a full blown investigation and hearing.  To eliminate this perception of bias, I strongly believe that some of these proceedings should be outsourced to third parties who have no stake in the game.  To learn more about why I think these cases need to be outsourced, check out my other article here: Students Deserve Third Party Title IX Proceedings. If the end goal is to ensure that all legitimate Title IX complaints are reported and resolved fairly, there can’t be any perception of bias or a chilling effect will remain.

New Era ADR’s Platform for Title IX

New Era ADR has created a fully digital platform specifically designed for Title IX, that allows for the informal resolution of Title IX complaints.  We have a bench of neutrals formally trained in Title IX mediations while the platform allows all parties in interest, in particular the Title IX Coordinator, to participate in the process from anywhere.  The DOE’s proposed changes are unquestionably a push in the right direction, but by adding a trained and disinterested third party as well as a technology platform, New Era ADR can improve on these changes.  Come see what we are offering and learn more about how New Era ADR is revolutionizing how Title IX is handled, here. 

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