Navigating a Time of Change

Nov. 2, 2022 By NMGL

In June 2022, the U.S. Department of Education announced major changes to Title IX guidelines, revising how sexual misconduct is defined, expanding the jurisdiction of educational institutions, and changing the standard of proof that schools use in determining if discrimination on the basis of sex has occurred. This marks a significant departure under the Biden administration from the guidelines enacted under former President Donald J. Trump – and students and their families must understand how these updated rules affect them. 

First enacted to address gender inequity in athletic programs, Title IX of the Education Amendments of 1972 prohibits sex-based discrimination against students and employees by academic institutions receiving federal funding. In 2011, the Obama administration significantly expanded Title IX enforcement with what became known as the “Dear Colleague” letter, a document that directed colleges and universities to conduct disciplinary proceedings in sexual assault cases using a lower threshold of evidence than in criminal courts.

In 2017, under Trump, then-Education Secretary Betsy DeVos rescinded the “Dear Colleague” letter, issuing new guidance in 2020. DeVos’ guidelines required that college students accused of sexual misconduct receive a written notice of the complaint and have the right to hearings overseen by multiple individuals. They also tasked schools with choosing a consistent standard of evidence. One option was the “clear and convincing evidence” standard of proof, a higher threshold than was previously required.

For Andrew T. Miltenberg, a leading Title IX attorney, the revised regulations issued by DeVos challenged the assumption that “you’re either against men or victims’ rights.” Instead, he says, “you can do both. People have lost sight of that.”

Biden’s administration proposes changes

In June 2022 – 50 years after Title IX took effect – the Biden administration announced yet another round of updates to Title IX guidance for schools, rolling back many of the Trump-era changes. These included:

  • Revising the definition of sexual harassment: The 2020 regulations defined sexual harassment as “unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.” The Biden-era regulations revise this definition to cover “harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity,” and “unwelcome sex-based conduct.”
  • Expanding Title IX protections: The 2022 proposed amendments specifically stipulate that Title IX protections cover discrimination based on pregnancy, sex stereotypes, sexual orientation, and gender identity.
  • Changing the guidance for Title IX hearings: These proposed amendments also remove the requirements for schools to hold an in-person hearing with cross-examination of witnesses. However, the guidance does note that schools “must have a process for a decision-maker to assess the credibility of parties and witnesses through live questions by the decision-maker,” phrasing which could cause potential confusion for schools regarding the hearing process. 
  • Modifying guidance on the standard of proof: In most cases, Biden’s proposed rules require schools to determine if discrimination occurred using a legal standard called “preponderance of the evidence.” This simply means “it’s more likely than not that something happened,” explains Miltenberg. “You don’t even need it to be evidence – and evidence is a dangerous word to use in these cases because there are no evidentiary parameters. Everything is considered fair game, including complete hearsay.”

The proposed rule also expands the jurisdiction of educational institutions – noting that schools that receive federal funds must investigate reports of sex discrimination, even if they occur off-campus. This could mean an off-campus party – but it even includes incidents that occur in study abroad programs.

Looking to the future

A lack of uniformity and clear policies have long plagued students accused of sexual misconduct. Along with shifting federal regulations, campus proceedings simply lack the clarity of criminal and civil trials. This leaves little in terms of concrete guidance or clear expectations. Each institution maintains its own policies which may be applied inconsistently, and the stakes are extremely high: Judgments can result in rescinded scholarships, revoked degrees, and lost career opportunities.

“There is no room for sexual harassment or assault on any campus,” Miltenberg says. “That doesn’t mean the accused shouldn’t have rights to a fair, transparent, and open process with an advisor and an independent, bias-free investigation.”

If you or your child has been accused of campus sexual harassment or assault, it’s important to seek support immediately. To learn more about navigating campus sexual misconduct proceedings, contact Nesenoff & Miltenberg, LLP, today.