One could reasonably infer from President Biden's inauguration-day Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation that his Administration is very likely to expand Title IX's definition of sexual misconduct. With it, the new Administration is likely to expand the powers of colleges and universities to more easily find and punish sexual misconduct, with fewer procedural protections to the accused and with less evidence. Read more detail of those projected changes here.
The prior blog identified these four Trump Administration Title IX reforms that the Biden Administration is likely to reverse, each treated in the following discussion:
- 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.
Broadened Misconduct Definitions. President Biden's Executive Order signaled a shift from Title IX's current limited, objective definitions of sexual misconduct and toward a subjective standard when it stated that “[d]iscrimination on the basis of gender identity or sexual orientation manifests differently for different individuals,” citing as an example a high level of homelessness, violence, and workplace discrimination for transgender Black Americans. New Title IX sexual-misconduct definitions are more likely to account for the person's individual view of the person's sex, gender identity, and sexual orientation, and its peculiar impact, rather than objective, community standards.
Fewer Procedural Protections for the Accused. Before the Trump Administration's new August 2020 Title IX regulations, many colleges and universities were not guaranteeing the student accused of sexual misconduct a hearing at which to confront and, with the help of an attorney advocate, cross-examine the accuser and other witnesses to expose false allegations. They were also finding sexual misconduct and expelling students based on only a preponderance of the evidence rather than the current clear-and-convincing-evidence standard in cases in which the evidence was nearly evenly divided between the accuser and accused. While the new Trump Administration regulations clearly provide better protection for the accused, Biden Administration regulations are likely to abandon those protections and return to something very like what previously existed--little or no hearing, no attorney participation, no cross-examination, and only a preponderance proof burden.
Defending False Sexual-Misconduct Charges. The Biden Administration's likely new, broader, vaguer, and more-subjective sexual-misconduct definitions will increase the risk of false or unfair sexual-misconduct charges, making aggressive advocacy around those vague definitions more important than ever. If, as expected, the Biden Administration also truncates the current procedural protections, then skilled representation from a national Title IX attorney advisor also becomes more important than ever to enforce any constitutional due-process rights and to take full advantage of the more-limited procedures. The successful defense of false charges will be possible, just more difficult, requiring greater skill in representation.
Retain Experienced Representation. The stakes of a college or university sexual-misconduct charge are high. They include loss of education and career, not to mention reputation. With such high stakes, your legal rights are critical to your successful outcome. National Title IX attorney advisor Joseph D. Lento can successfully defend against false or exaggerated charges under current Title IX regulations and new regulations that may well come in the not-too-distant future. Expert counsel can be your one great advantage to turn back false accusations. Students nationwide retain Joseph D. Lento and the Lento Law Firm to represent them in Title IX matters. National Title IX attorney advisor Joseph Lento has the knowledge, experience, and expertise, and his law firm has the resources, to help you through a sexual-misconduct proceeding. Call 888-535-3686 to schedule a consultation, or use the online service.