The Biden Administration has just released new Title IX rules. The new Biden Title IX rules make defending school sexual misconduct charges significantly harder. The new Title IX rules thus make it all the more important that you retain the Lento Law Firm's premier Student Defense Team to fight your school sexual misconduct charges.
We have been here before. The rights of accused individuals were severely limited under the Obama Administration's Department of Education (DOE), and our firm vigorously and successfully defended students and staff who faced Title IX accusations during and for years prior to that time. While the DOE under Betsy DeVos implemented crucial protections for due process for the accused, the new Biden Administration rules roll them back significantly. The Lento Law Firm has been a leader in Title IX defense through it all, and we will continue to defend students and staff members, and advocate for due process for the accused.
An ffective defense to school sexual misconduct charges remains possible, even under these challenging new Biden Administration rules. It just takes greater attorney skill and experience. Call 888.535.3686 or use our contact form now to tell us about your case. Our attorneys will help you navigate the following Title IX changes.
What the New Biden Title IX Rules Are
The new Biden Title IX rules are 1,577 new pages of interpretations and regulations with which federally funded schools must comply. The Biden official announcing the rules hailed them as the most comprehensive regulations since Title IX's adoption. Congress enacted Title IX of the Civil Rights Act of 1964 to prohibit sex discrimination in publicly funded school programs. The Title IX legislation authorized the Department of Education to adopt rules and regulations interpreting and carrying out Title IX's non-discrimination mandate. Executive Branch administrations have been promulgating and revising Title IX rules since then. The new Biden Title IX rules' expressed intent is “to better align the Title IX regulatory requirements with Title IX's nondiscrimination mandate.” But in fact, the new Title IX rules significantly roll back key protections that the Trump Administration had adopted to ensure that students and staff members accused of sexual misconduct could protect themselves against false charges. Get our help if you face school sexual misconduct charges.
When the New Biden Title IX Rules Take Effect
The new Biden Administration Title IX rules will take effect August 1, 2024. The Biden Administration released the rules on April 19, 2024. But colleges, universities, and other schools at all levels to which Title IX applies will very likely need to modify their internal policies and procedures, and train their discipline administrators in the new Biden Title IX rules. The delay in the new rules, to take effect in August 2024 at the beginning of the new 2024-2025 school year, will give school administrators time to make those changes. School administrators have already decried the short time they have to make the necessary changes. You may find your school still implementing the new Biden Title IX rules through the 2024-2025 school year and beyond. The changes are so comprehensive that they will require study, development of new policies, and training in new procedures.
Whom the New Biden Title IX Rules Affect
Title IX applies to schools receiving federal funding, which includes virtually all public schools and most private schools as well. If you attend a public or private college or university, or your student attends a public elementary or secondary school, the new Biden rules will apply to your matter or your student's matter. The new Biden Administration Title IX rules affect students at all levels, from elementary and secondary school through college to graduate and professional programs. If you are a student at any level and you face sexual misconduct charges, the new Title IX rules will apply to your sexual misconduct proceeding. Let us help defend you against those charges to preserve your education and future.
The new Biden Administration Title IX rules also affect teachers, professors, administrators, and other employees of schools at all levels, from elementary and secondary school through college to graduate and professional programs. Title IX prohibits sex discrimination in education, meaning that school employees who harass or discriminate against students based on sex may face Title IX charges and termination of their employment. Your school employer may have the federal obligation to take action against you that could result in your demotion, suspension, or employment termination. If you are a school employee facing sexual misconduct charges relating to one or more students, the new Title IX rules are your challenge. Let us help defend you and preserve your school employment.
The New Biden Title IX Rules
The new Biden Administration Title IX rules are extraordinarily long and comprehensive. They make many small and large changes to existing Title IX rules. The biggest changes include (1) redefining sexual misconduct definitions to reach additional conduct, (2) extending protections to cover more students in more activities and locations, and (3) relaxing how schools may address charges. However, other changes under the new Biden Title IX rules may be significant in your particular matter. Consider below a few of the many significant changes. Our attorneys can help you determine whether other changes may affect the outcome of your school sexual misconduct matter.
New Title IX Definitions Cover More Student Conduct
The new Biden Title IX rules modify the definition of sex discrimination to make sex-based harassment a Title IX violation. The former definition referred to sexual harassment, while the new definition broadened the reach to harassment based in some way on sex. The new Biden rules “state explicitly that sex-based harassment is a form of sex discrimination.” The message to take from this definitional change is that virtually any conduct or statement related in any way to sex could now bring Title IX sexual misconduct charges. The Department of Education summary of the Title IX definitional changes say that the new definitions protect against discrimination or harassment based on “sex stereotypes” or “sex characteristics.”
New Title IX Rules Cover More LGBTQ+ Categories
The new Biden Title IX rules now explicitly protect students in their “sexual orientation” and “gender identity.” Schools may now construe as Title IX sexual harassment, statements or actions expressing dissent to any LGBTQ+ view. The expanded protections and their aggressive enforcement by school investigators who are advocates for sexual and gender identity rights may prevent students from speaking and joining with others in clubs and activities that LGBTQ+ advocates to be hostile to their sexual and gender identities, thus violating First Amendment rights of freedom of speech, association, and expression.
New Title IX Coverage for Transgender Students
The new Title IX rules confirm what the Supreme Court had already suggested in its 2020 Title VII employment discrimination decision Bostock v. Clayton County, that Title IX protects transgender students, reversing the Trump Administration stance. Under the new Biden Title IX rules, discrimination against transgender students, including statements regarding transgender rights and effects that transgender students construe as offensive and thus harassing, may result in Title IX sexual misconduct charges. Refusing to use the transgender student's preferred name or pronoun could also result in Title IX charges.
New Title IX Rules Protect Pregnancy and Parents
The new Biden Title IX rules also expand protections for pregnant students, covering discrimination and harassment based on “pregnancy or related conditions.” The new Biden Title IX rules also now explicitly protect students who are parents. While Title IX itself does not explicitly protect parental status, because becoming a parent involves sexual reproduction and implicates one's sex the new Biden rules make parental status a protected class. Schools must not discriminate among students based on which students are parents of children.
New Title IX Rules Extend Reach Off-Campus
The new Biden Title IX rules extend the school's power and authority to reach off-campus and international incidents. The 2020 Trump Title IX rules had limited the school's obligation and opportunity to discipline students for off-campus misconduct. The Trump rules had also restricted the school's jurisdiction to discipline, to domestic rather than international incidents. The new Biden Title IX rules permit schools to discipline students for sexual misconduct not only on school grounds but also “during school activities off campus” and at off-campus school activities under the school's “disciplinary authority.” Sexual misconduct at off-campus school events or events where a school teacher or other school official is present with school authority can now result in Title IX discipline. The new Biden rules also eliminate the territorial restriction to domestic incidents. Title IX now reaches international incidents in study abroad programs.
New Title IX Definitions Expand Charge Reach
The new Biden Title IX rules relax and expand the definition of sexual harassment. The former 2020 Trump Administration rule had required the misconduct to be “severe, pervasive, and objectively offensive” to violate Title IX. Schools properly read that definition in the conjunctive. To violate Title IX, the misconduct had to be severe and pervasive. The new Biden Title IX rules lower the misconduct standard to “sufficiently severe or pervasive,” meaning that conduct that is either severe or pervasive violates Title IX. The addition of the adverb sufficiently also hints at a lower standard. The new Biden interpretation states that to violate Title IX, the conduct need only be “sufficiently severe or pervasive to limit or deny a student's ability to participate in or benefit from a recipient's education program or activity (i.e., creates a hostile environment).” The new definition clearly loosens the misconduct standard, giving accusers more power to allege Title IX violations based on statements or conduct they claim makes them unable or unwilling to participate. Expect more charges to result.
New Title IX Rules Lower the Evidentiary Standard
The new Biden Title IX rules require schools to apply the lower preponderance of the evidence standard when evaluating sexual misconduct allegations. The Trump Administration Title IX rules had permitted and encouraged schools to apply a higher clear and convincing evidence standard when evaluating sexual misconduct allegations. Few schools did so. Most schools applied the lower preponderance standard. However, the new Biden Title IX rules now require all schools to follow the lower standard. The lower preponderance standard means that if the accuser has as little as a feather's weight more evidence of misconduct than the accused has of no misconduct, then the accuser will prevail. The preponderance standard is the usual 51% / 49% civil court standard, far from the criminal court beyond a reasonable doubt standard, even though sexual misconduct charges may be more like criminal charges in their harsh effects on rights and reputation.
Relaxed Rules for Investigating Title IX Charges
The new Biden Title IX rules adopt an individual meeting method for investigating sexual misconduct allegations. The individual meeting method is like the single investigator model that schools generally followed under the former Obama guidance. The model led to many lawsuits alleging due process violations due to investigator bias and conflicts of interest. The 2020 Trump rules thus required schools to provide more than one level of investigation, such as an appeal of the investigator's decision to a review panel. The Trump rules reduced single investigator bias and conflicts. However, the new Biden rules permit schools to return to the practice of having a single investigator conduct individual meetings, gathering statements, and determining Title IX violations.
Elimination of Live Hearing Testimony Requirement
The new Biden Title IX rules eliminate the Trump Administration mandate for live hearings at which accusing witnesses must testify subject to cross-examination. The Trump Title IX rules required live testimony at a formal hearing at which the accused and the accused's retained counsel could attend to cross-examine accusing witnesses. Hearing officers could generally not consider the statement of a person who refused to testify subject to cross-examination. Under the new Biden Title IX rules, hearing officers may consider statements made outside of the hearing, where the accused had no chance to challenge the statements. A school official may interview the accuser and others separately, recording the responses. The accused student may suggest interview questions, but the school official decides what to ask. Although the Biden rules permit live hearings, they don't require them, meaning that many schools may abandon them in favor of the simpler and less expensive interview process. The Biden rules also require schools to allow students to participate remotely. Accusers may refuse to show up in person, instead speaking from a remote location. The hearing officer must also prohibit the accused from asking questions that are either “unclear or harassing.” While advocates claim that the Biden rule will encourage more victims to report sexual misconduct, the accused won't have the same opportunity to show that the reports are false, exaggerated, biased, retaliatory, or simply mistaken.
New Interpretations on the Right to Counsel
The new Biden Title IX rules also clarify at length when a student or staff member may choose and retain an attorney as an advisor in a Title IX sexual misconduct proceeding, and how the school may regulate the advisor's participation. The new rules generally give the school greater liberty to limit the attorney's participation, such as removing the Trump Administration's requirement that the accused student's attorney have the opportunity to cross-examine an accusing witness at a live hearing. But the new Biden Title IX rules do not eliminate your right to choose, retain, and rely on the skilled and experienced advice of counsel. You retain the right to hire us for your effective defense to Title IX charges.
What the New Biden Title IX Rules Change
The prior rules, adopted late in 2020 by the Trump Administration, promised better protections for the accused. Obama Administration guidance had led schools to relax traditional procedural protections for the accused student or staff member. Indeed, things got so bad under the Obama guidance that federal litigation began finding that some schools were violating student's constitutional due process rights. Constitutional due process generally requires fair notice and an opportunity for a fair hearing before an impartial decision maker. The process, though, can depend on the context. Criminal cases threatening incarceration must afford substantial protections. Schools threatening to suspend or expel a student must afford some protections. How much protection is the critical question?
The signature reform that the 2020 Trump Title IX rules adopted, promoted and touted by Trump Education Secretary DeVos, was the requirement that witnesses accusing a student of wrongdoing must appear at a formal hearing to testify under oath and subject to cross-examination. In one fell swoop, the Biden Title IX rules undo that protection. Schools may do as they like, which often means providing fewer protections, opening the door for a rush to judgment. The Biden rules also eliminated the double-review model, effectively restoring the Obama-era-era single investigator model that led to so many due process violations.
The Trump Title IX rules had also tightened the definition of sexual misconduct, ensuring that Title IX punishment would attach only to severe, pervasive, and objectively offensive conduct. The Trump requirement that the misconduct charged be objectively offensive meant that an unusually sensitive accuser would not succeed with a charge if the reasonable person had not regarded the conduct as offensive. Once again, though, the Biden rules relax that protection, authorizing Title IX charges when a student believes the conduct to be sufficiently severe or pervasive to interfere with the student's participation. The offense, in other words, may be more subjective than objective in the eyes of the beholder.
What the New Title IX Rules Do Not Address
The new Biden Administration Title IX rules do not do everything that the Administration promised. The Biden Administration has proposed prohibiting schools from outright bans on transgender athlete participation. Under the proposal, schools would have been able to regulate transgender athlete participation on specific criteria such as safety but would not be able to use an outright ban. Yet the new Biden Title IX rules do not include that proposed prohibition of outright bans. For the time being, schools may regulate transgender athlete participation without running afoul of the new Biden Title IX rules.
However, more Biden Administration Title IX rules may be introduced after the November election. Policymakers, advocates, and commentators predict the Biden Administration will release the promised new prohibition on outright bans of transgender athlete participation after the November election. The reason for the delay is said to be to keep the political opposition from making election gains based on the divisive issue and to avoid public backlash that might influence the election's outcome. Indeed, political commentators claim that the Biden Administration released the new Title IX rules far later than initially promised and under pressure from its traditional supporters, primarily to motivate its political base before the election. Schools generally decry the political back and forth, requiring frequent reform of school policies and practices.
Potential Challenges to the New Biden Title IX Rules
Just as policy advocates and affected parties took the 2020 Trump Title IX rules to court, a court challenge of the new Biden Title IX rules is likely. One basis for the challenge involves the limited authority that the Executive Branch has to promulgate administrative rules interpreting congressional legislation. Administrations do not have plenary authority. The Biden Administration may not do as it pleases with Title IX rules. Any administration adopting rules and regulations may do so only when consistent with the authority that Congress has granted the Executive Branch. Twenty states had already sued the Biden Administration for Title IX overreach, even before the new Biden Title IX rules.
The courts may, for instance, decide that the Biden Administration has expanded protections beyond what Congress intended. For instance, critics of the new Biden Title IX rules say that their transgender student provisions undermine the equal educational rights of girls and women, threatening gains female students have won under Title IX. They say the new Biden rules not only go beyond Congress' intent but also actively discriminate by ignoring biological differences between the sexes, invading the privacy of girls and women, and threatening their safety. Court battles may go on for months or years, but the new Title IX rules will likely face such challenges.
Another challenge to the new Biden Title IX rules may come from accused students and staff members whose schools deprive them of their constitutional due process rights. By allowing schools to suspend and expel students based on information gained from private interviews, without testimony subject to cross-examination at a formal hearing, the new Biden Title IX rules may deprive the accused of due process in certain cases. We saw a successful litigation increase under Obama's guidance and could expect it to do so again under the new Biden rules. Our attorneys can help you evaluate and enforce your due process rights, if you face a truncated school proceeding denying you fair notice and hearing.
Another court challenge to the new Biden Title IX rules may rely on student and staff member First Amendment rights. The new Biden rules empower school investigators, who are typically sympathetic to the views and interests of advocates and accusers and may themselves be instructors or advocates in associated fields, to silence discussion and dissent on campus regarding the wisdom and effects of associated social reforms. Public schools, colleges, and universities, though, must respect the free speech and freedom of association rights of students. Students who face Title IX charges simply for speaking their views freely on campus, without harassing or discriminating, may have a First Amendment defense to those charges. Let our attorneys help you raise that challenge.
Another court challenge to the new Biden Title IX rules may have to do with the procedure that the Biden Administration followed in adopting its new Title IX rules. The federal Administrative Procedures Act's rulemaking procedures require specific forms and contents of notices of proposed rules and public comment periods. Challenges to the new Biden Title IX rules may include allegations that the Biden Administration short-circuited the process.
Finally, Congress itself may decide to review and undo the new Biden Title IX rules under the Congressional Review Act. It is unlikely that Congress would change Title IX itself as a key part of the historic Civil Rights Act of 1964. However, the Congressional Review Act enables Congress to overturn regulations that, in its view, are inconsistent with the legislation on which the administrative agency based the regulations. The current Congress would not review and overturn the new Biden Title IX rules, but a future Congress, after one or more new elections, may have the political will to do so.
What Is the New Title IX Process
The new Title IX process under the Biden Administration rules may look like the old process under the Obama Dear Colleague guidance letter, involving a single investigator potentially with significant bias and conflicts of interest favoring the school and accuser. Schools are generally likely to do the least that federal regulations require when providing protective procedures to accused students. Those procedures take time, trouble, and training. By removing the Trump era protections for formal hearings and two-level review, the Biden rules invite the schools to return to a single investigator conducting separate interviews to gather unchallenged incriminating allegations and then deciding the matter without independent review based on those unchallenged allegations. You face a significant new procedural challenge under the new Biden Title IX rules. Let us help you meet that challenge.
Defense Representation Is More Important Than Ever
- the above summary of the new Biden Title IX rules is plainly discouraging for anyone facing school Title IX sexual misconduct charges. But a charge is not the same thing as a finding of sexual misconduct. And the accused student or staff person still has constitutional due process rights or, in the case of private schools, their contractual equivalent. Your defense may still be possible. Our premier Title IX attorneys have the skills and experience you need for your best defense. Despite the Title IX rules changes, we may still be able to take any or all of the following steps for your effective defense:
- promptly notify the school of our appearance on your behalf, demonstrating to the school that you are taking your defense seriously and will enforce your substantive rights and procedural protections;
- promptly obtain detailed specifications of the charges for review and evaluation, sharing with you our advice and counsel as to how to proceed for your most effective defense;
- promptly obtain the investigator's interview statements and other evidence, sharing with you our evaluation of the strengths and weakness of that evidence;
- help you gather, organize, and present your exonerating and mitigating evidence so that the school has a balanced view of the matter and you have a sound record on which to appeal any adverse findings;
- help you prepare for your interview so that you know what to expect and how to respond with accurate and complete information;
- invoke any formal hearing procedures the school offers, attend any hearings to present your evidence, and challenge the other side's evidence to the greatest extent the school will permit;
- request, arrange, and attend conciliation conferences and conduct other informal communications and negotiations to resolve the matter voluntarily at the earliest stage possible, in the most favorable manner possible;
- appeal any adverse findings to a higher authority within the school as the school's procedures allow, and research, draft, and present your appeal arguments meeting the appeal standards to reverse adverse findings based on bias, conflicts of interest, lack of evidence, and other permissible grounds;
- seek state or federal administrative review and state or federal court review of any adverse results, as law, rule, and regulation allow; and
- even if you have lost all hearings and appeals, contact, communicate, and negotiate with your school's general counsel's office for alternative special relief.
Premier Title IX Defense Representation Available
Don't give up or give in to Title IX sexual misconduct charges simply because the new Biden Title IX rules make defending those charges more difficult and uncertain. Instead, retain the Lento Law Firm's premier Student Defense Team for your best defense against school Title IX charges, whether you are a student or a school staff member. We have helped hundreds of students and staff members nationwide, fighting and defending Title IX and other misconduct charges. Call 888.535.3686 or use our contact form now to tell us about your case.
