How the New Title IX Rules Affect North Carolina Colleges and Universities
The Biden administration on Thursday proposed new Title IX rules that establish guidelines for how colleges and universities handle sex discrimination, expand protections for transgender students and broaden the scope of schools’ responsibilities to investigate sexual misconduct investigations.
The proposal would replace federal Title IX guidelines established by former Secretary of Education Betsy DeVos that went into effect in the fall of 2020. Those rules strengthened the due process rights of students accused in on-campus sexual assault cases, restricts the definition of sexual harassment, increased the standard of proof required to find a responsible student in a disciplinary procedure and required schools to hold “live hearings” with cross-examination of students, like in a courtroom.
The new proposal came Thursday on the 50th anniversary of Title IX, the federal law that prohibits schools receiving federal funding from discriminating against individuals on the basis of gender.
“Over the past 50 years, Title IX has paved the way for millions of girls and women to access equal opportunities in our nation’s schools and has been instrumental in the fight against sexual assault. and sexual violence in educational institutions,” said US Secretary of Education Miguel Cardona. in a report. “As we celebrate the 50th anniversary of this historic law, our proposed changes will allow us to continue this progress and ensure that all students in our country – no matter where they live, who they are or who they love – can learn, grow and thrive in school.
The new regulations specify that students and employees will be protected from all forms of gender discrimination, including on the basis of “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender.” ‘gender identity’, strengthening protections for LGBTQI+ students.
The proposed changes were motivated by President Joe Biden’s 2021 Executive Order for a Review of Federal Title IX Policies in Response to Trump Administration Regulations, which the Biden Administration supported”weakened protections for survivors of sexual assault and diminished the promise of a discrimination-free education.
American education The Department held public hearings, meetings, and listening sessions with students, parents, educators, state government officials, advocates, attorneys, researchers, and other stakeholders through through its Civil Rights Office.
The new Title IX rules
Some of the most significant changes in the proposed rules relate to how a school investigates allegations of sexual harassment and assault. This includes expanding the definition of what is considered sexual harassment and the types of incidents schools must investigate.
The Biden Rules specify that a university must address all incidents of gender discrimination and harassment that contributes to a hostile educational environment, even if the the incident occurred or is reported off campus, outside of a student’s educational program or activity, or outside of the United States.
The rules also set out more requirements for schools to conduct “reliable and impartial” investigations into complaints. The department described the procedural updates as filling loopholes to protect more students rather than overhauling the process.
Under the proposed regulations, schools must:
▪ Treat complainants and defendants fairly.
▪ Have the ability to offer informal resolution of sex discrimination complaints with Title IX coordinators, investigators, decision makers, and facilitators who do not have a conflict of interest or bias against the parties involved.
▪ Give parties an equal opportunity to present relevant evidence and respond to relevant evidence from other parties and ensure that decision makers objectively assess each party’s evidence;
▪ Have a process for a decision-maker to assess the credibility of parties and witnesses through live examination, but cross-examination is optional and no longer required.
▪ Use the standard of proof of the preponderance of the evidence, which means that it is more likely than not that an accused student violated the rules of student conduct. However, a school may use the clear and convincing standard of proof if it uses that standard in all other comparable proceedings.
The UNC System Directives
The UNC system sets Title IX guidelines and a minimum standard for due process at public universities in the state, but each campus can set its own procedures. And universities in the system already use a “preponderance of evidence” standard in student disciplinary proceedings.
Some universities, including UNC-Chapel Hill and NC State, give students the right to an attorney and allow cross-examination of witnesses.
Under the new rules, schools would no longer be required to hold live hearings to assess evidence and they can use a single investigator model.
The proposed regulations also specifically direct schools not to “intimidate, threaten, coerce, or discriminate against anyone” for reporting an incident or participating in the Title IX process. This includes protecting students from retaliation by other students.
“The proposed settlement reflects the Department’s commitment to giving full effect to Title IX, ensuring that no one experiences sex discrimination in education, and that school procedures for handling complaints of sex discrimination, including the sexual violence and other forms of sexual harassment, be clear, effective and fair to all parties involved,” Deputy Civil Rights Secretary Catherine Lhamon said in a statement.
The proposed regulations must still go through public comment for a period of 60 days before taking effect.
The Foundation for Individual Rights and Expression, a nonpartisan, nonprofit organization focused on student advocacy, argues that the proposed changes “impede free speech and due process rights for students facing allegations of sexual misconduct on campus”.
Decision to eliminate rights to live hearings, cross-examination and active assistance from counsel is a ‘recipe for constitutional violations that courts are unlikely to ignore,’ says legislative director and FIRE policy Joe Cohn in a statement.
The group plans to submit its formal objections to the proposed changes in the coming weeks.
The Education Department plans to release a separate proposal to explain how Title IX applies to athletics, including how schools determine a student’s eligibility to compete on a men’s or women’s track team. particular.