How will the Biden administration’s Title IX amendments affect handling of claims?
The Biden administration’s many proposed amendments to Title IX of the Education Amendments of 1972 will drastically change how colleges and universities operate and administer claims — and it will be crucial for sports business professionals to have a clear understanding of the changes and their impacts. This article will analyze the most significant changes and how they compare to prior amendments from the Trump administration.
Timing
Timing relates to when the Biden amendments will be enforceable. Sounds simple, right? Not so. Originally, the Biden amendments were scheduled to be implemented in May — until hundreds of thousands of comments were received, including over 130,000 on the issue of students participating in athletics according to their gender identity. To handle this volume of comments, the Department of Education (DOE) pushed the implementation date to October. If the DOE can’t appropriately read and respond to the comments by then, that date could be delayed further.
The Definition of ‘Sex Discrimination’ Expanding
Title IX has always dealt with sex discrimination and its ramifications, but the parties protected under Title IX will expand greatly with the Biden amendments. Any discrimination based on gender identity, sex-related characteristics, transgender or nonbinary status, sex stereotypes and/or LGBTQ+ status will be expressly prohibited. When it comes to how colleges and universities handle these types of claims, athletic departments should pay close attention. Actions that may have previously seemed innocuous, including off-color jokes, skits or comments may now rise to the level of Title IX violations. The scandal at Northwestern could shine an even brighter spotlight on these changes.
Changes to the Standard of Proof
Liability for sexual assault currently requires a “preponderance of the evidence,” which essentially means if 51% of the evidence indicates that the action occurred, there is sufficient evidence to find the party liable. Under the Biden amendments, that standard will increase to “clear and convincing evidence.” This is a higher standard than preponderance of the evidence, more akin to a criminal requirement.
In handling claims under this standard, colleges and universities must provide sufficient information and education on what “clear and convincing” evidence means and how a finding of liability is now more difficult. If colleges and universities do not sufficiently educate students, faculty and interested parties, they are inviting prolonged and substantial backlash from claimants who don’t understand why it was easier to prove a Title IX claim a year ago.
Protections for Expecting and Pregnant Students
In addition to including pregnant and expecting students and employees as a protected class against sex discrimination, under the Biden amendments, colleges and universities will also have to provide reasonable accommodations, facility modifications and appropriate nursing/lactation spaces. Given the sheer cost and effort associated with modifying physical spaces, infrastructure costs could skyrocket and the refusal to incur these costs could result in a deluge of new claims under Title IX.
Elimination of Mandated Live Hearings
When the Trump administration made changes to Title IX in 2020, the intent was to make the proceedings more akin to court proceedings — in particular, criminal proceedings, where live hearings are mandated and cross-examination allowed.
The Biden amendments seek to reverse that requirement, making Title IX less formal. The biggest issue colleges and universities may face here is respondents being unable to “confront” the witness, which is guaranteed in criminal proceedings under the Sixth Amendment. But it’s important to remember that Title IX proceedings are not criminal proceedings. Conversely, there may be an additional level of comfort for claimants as they won’t have to sit in the same room as their alleged abuser.
Informal Resolution Allowed Prior to Filing a Formal Complaint
Informal resolution, which is similar to mediation, is likely to become an indispensable part of resolving Title IX disputes. Under the Trump amendments the parties to a dispute could only engage in informal resolution after a formal complaint was filed. This scared many complainants as they did not want to take any formal action, instead merely seeking to informally resolve their dispute. The Biden amendments remove the prerequisite of filing a formal complaint, allowing parties to seek resolution early in the process.
For colleges and universities, this will be a great tool for mediating disputes. It will also, however, likely drive up the volume of disputes, so schools should be prepared to ramp up the resources devoted to informal resolution or even outsource the process altogether.
A Return to the Single Investigator Model
Under the current model, the party investigating the Title IX claim is precluded from adjudicating liability. This results in further stretched bandwidth and resources. The Biden amendments propose to change this model allowing the “single investigator” to both investigate the claims and decide “guilt.” Colleges and universities will need investigators who are both skilled and experienced in investigation and adjudication. This could require further staffing and training well beyond current levels.
Transgender and Nonbinary Participation in Sports of the Student’s Gender Identity
Perhaps the most controversial of all the proposals in the Biden amendments, the ability for a student to participate in athletics based on their gender identity and not their biological gender. In fact, 21 states have already enacted legislation prohibiting the exact participation that the Biden amendments would allow.
It’s too early to say how these provisions of the Biden amendments will shake out. Will they remain as written? Or will the outcry put sufficient pressure on the DOE to concede to certain demands? Regardless, colleges and universities must prepare for a significant change in the way students are allowed to participate in athletics, which may impact everything from facilities to team sizes and scholarship availability.
Conclusion
The Biden amendments promise to fundamentally change the way colleges and universities operate, with a particular emphasis on the functioning of athletic departments. Above all, the key to success for these institutions is education, training and over-preparation for what may come in October and beyond. This is going to be a bumpy road, but it could result in an abundance of positive outcomes for students and faculty alike.
Related Articles: Biden Administration and the Department of Education | Proposed Title IX Changes
Collin is the Founder and Chairman of New Era ADR. Collin was previously General Counsel at Reverb.com, the preeminent digital marketplace for the buying and selling of musical instruments, gear and equipment. Reverb was one of Inc. Magazine’s fastest growing companies in 2017, 2018 and 2019. Collin ran Reverb’s acquisition by Etsy in 2019 for $275M.
Prior to Reverb, Collin was the first attorney at a healthcare technology start-up in Chicago that was also one of Inc. Magazine’s fastest growing companies in the country, as well as Corporate Counsel in the first cloud computing legal department of Oracle, a Fortune 100 company.
The inspiration for New Era came from the first 11 years of Collin’s practice which was spent as a litigator at Greenberg Traurig, LLP and Butler Snow, LLP where he litigated hundreds of cases, many of which he took fully through trial or arbitration/mediation.
Collin has also been a Director for Streetwise, one of the largest homeless aid organizations in the Midwest, an Associate Board Member of Make-A-Wish Illinois and a mentor with Real Industry.
Collin holds a B.A. from Middlebury College and a J.D. from Tulane University School of Law
