It's no secret that the national political parties and candidates hotly contested the latest presidential election. The hot-button, sharply contested issues aren't just on immigration, policing, sexual identity, and Israel. The nation's wide political divide exists just as much in the interpretation of Title IX law, under which colleges and universities decide sexual-misconduct cases. And as election winners often remind us, elections have consequences. Winners rule, while losers go home.
So, what's likely to happen to Title IX under the Biden Administration? One thing seems sure: the transition from a Trump Administration to the Biden Administration is not likely to be a case of the more things change, the more they stay the same. Expect instead that federal Title IX regulations will change. We may not see broad legislative reform but are very likely to see significant regulatory changes. Expect colleges and universities to step back from the procedural protections that they just adopted last year under the last year's new federal regulations. This three-part blog series will explore what may come.
First, though, in this entry, understand where Title IX interpretation is now and what that means to those whom colleges and universities accuse of sexual misconduct.
Where Are We Now? Colleges and universities receiving federal funds must enforce Title IX's prohibition against sex discrimination consistent with administrative regulations. A 2011 Obama Administration Dear Colleague Letter expanded Title IX's prohibited forms of sexual misconduct, adding protections for the accuser that some court decisions found so strict as to violate the accused's constitutional rights. The Trump Administration rescinded that Dear Colleague Letter while tightening Title IX's sexual-misconduct definition again and adding protections for the accuser and accused. Read more here about those recent Title IX interpretive changes.
The current federal interpretation, still in place but likely to change under the Biden Administration, limits Title IX's reach to only these three forms of sexual misconduct: sexual assault, dating violence, domestic violence, or stalking; quid-pro-quo harassment (attempting to trade favors for sex); and unwelcome conduct so severe, pervasive, and objectively offensive as to deny equal access to education based on sex.
Just as significantly, effective in August 2020, new Trump Administration Title IX regulations guaranteed the student accused of sexual misconduct a hearing at which the accused has the right to attend with an attorney-advisor to cross-examine the accuser and other witnesses to expose false allegations. The factfinder at that hearing may find Title IX sexual misconduct only on clear and convincing evidence, which is a higher burden of proof than the former preponderance-of-the-evidence standard. The new regulations clearly provide better protection for the accused.
Retain Expert Representation. You can see how under the current law and interpretations, expert representation by national academic attorney Joseph D. Lento of the Lento Law Firm can help you successfully defend against false or exaggerated sexual-misconduct allegations. School sexual-misconduct charges can end an education and ruin a reputation. Cross-examination of adverse witnesses and other advocacy like organizing and presenting evidence, challenging proposed findings, and appealing adverse findings can change the outcome of sexual-misconduct charges. Retain the expert representation of Joseph D. Lento and the Lento Law Firm if you face sexual-misconduct allegations. Call 888-535-3686 to schedule a consultation, or use the online service.
And that is where things stand now, at the outset of the Biden Administration. The next entry discusses what the changes are likely to be, but these are the current interpretations that are most likely to change under the Biden Administration:
- Title IX's strict, limited, and objective definition of sexual misconduct;
- the accused's right to attend a formal hearing to confront the accuser;
- the accused's right for counsel to cross-examine opposition witnesses; and
- the higher clear-and-convincing-evidence burden for proving misconduct.