On March 8, 2020, President Biden took the first step toward undoing many aspects of President Trump's Title IX regulations when he signed an executive order directing Secretary of Education Miguel Cardona to begin review of the previous administration's controversial Title IX regulations ("2020 Regulations"). Although the move was widely expected, given President Biden's criticism of the Trump-era changes contained in the 2020 Regulations, it is too soon to say whether he will return to Obama-era guidance or seek to establish a new middle ground on Title IX issues. At this stage, it remains unclear whether the president will suspend the 2020 Regulations or seek to issue new rules. Because the 2020 Regulations went through a formal rulemaking process, rescinding them would likely result in legal challenges. If the new administration seeks to rescind the 2020 Regulations and impose new rules at the end of this review period, it must undergo the same rulemaking process—a process that took former Secretary of Education Betsy DeVos three years to complete.
While it is impossible to predict the future, given the Biden administration's emphasis on gender equality, the president is expected to take a more victim-oriented approach, putting the current regulations' provisions—which focus on protections for the accused—most at risk. We have highlighted some of these key provisions below.
Proper Evidentiary Standard
Under President Obama, the guidance directed schools to use the "preponderance of the evidence" standard to determine responsibility for alleged sexual harassment. The 2020 Regulations changed this to allow schools to choose between the "preponderance of the evidence" standard or the higher "clear and convincing evidence" standard. If the current administration opts for more protections for victims, reverting to the sole use of the "preponderance of the evidence" standard is likely.
Cross-Examination Requirement
One of the more controversial aspects of the 2020 Regulations is the requirement that educational institutions have a grievance process that provides for a live hearing and cross-examination by each party's appointed advisor. Under President Obama, live hearings were permitted but discouraged in favor of a "single investigator" model, where the same school employee oversees investigating and determining the outcome of sexual misconduct allegations. However, at least one circuit court has held that the "single investigator" model violates the due process rights of the accused. It is likely that any new guidance or regulations proffered by the Biden administration will have to reconcile this conflict.
Definition of Sexual Harassment
The 2020 Regulations significantly narrowed the type of conduct that constitutes sexual harassment under Title IX by redefining the standard for unwelcome conduct from conduct that is "severe, persistent, or pervasive" to "severe, persistent and objectively offensive." This change heightened the burden on survivors by requiring them to prove that the conduct satisfied all three elements. Although the change had been touted by the Trump administration as protecting free speech and academic freedom, critics have argued that it promotes a hostile environment, making it a ripe issue for President Biden to address.
Actual Knowledge Requirement
Under Title IX, a school may be held liable for sexual harassment of a student if it has knowledge of the conduct and fails to respond in a meaningful way. Prior to the 2020 Regulations, "knowledge" included vicarious knowledge or constructive notice, meaning that schools could be liable for conduct that they actually knew about and for conduct that they reasonably should have known about. The 2020 Regulations changed the definition to include only actual knowledge, which opponents of the 2020 Regulations have argued provides more protections for schools to avoid liability.
Education Program or Activity Requirement
In the 2020 Regulations, the Trump administration clarified the definition of "education program or activity" for determining where the conduct must take place for the school to have an obligation to respond. Under the 2020 Regulations, schools must investigate sexual harassment that occurs in any place where the school exercises substantial control over the respondent and circumstances of the conduct or if the conduct occurs at an off-campus building owned or operated by a recognized student organization. Although the 2020 Regulations make it clear that off-campus conduct may be covered under this definition, opponents have argued that this definition limits the range of off-campus conduct that a school is obligated to investigate. President Biden might seek to expand or clarify this definition to cover more off-campus activities.
We will continue to monitor any further developments in this area as the review process moves forward. The 2020 Regulations went into effect on August 14, 2020 and, for now, they remain unchanged. Educational institutions subject to Title IX should ensure that they continue to comply with such regulations. Educational institutions seeking guidance on policy or procedure updates, or any other questions related to Title IX, should feel free to contact Michael Volpe, Doreen Martin, Sarah Donovan, Allison Gotfried, Sarah Fucci, or any other member of Venable's Higher Education or Labor and Employment Group.