New title IX rules have been published

The Biden administration on Thursday unveiled a proposed Title IX rule that incorporates major changes to how colleges should respond to sexual harassment. The proposed rule also extends protection for LGBTQ students.

Title IX of the 1972 Education Amendment is a law that protects students, faculty and staff from gender-based discrimination in education programs that receive federal assistance. The proposed rule prohibits discrimination on the basis of sexual orientation and gender identity in addition to gender on college campuses for the first time in history. That protection is expected to be attacked by many. During the Obama administration, LGBTQ students were protected under Title IX, but it was never added to the regulations.

The proposed rule also eliminates many of the Trump administration’s requirements for investigating discrimination cases, including the interrogation of witnesses, which many critics of the 2020 rules say has placed a burden on victims of harassment. This gives colleges more flexibility to develop their own grievance procedures and policies

Education Secretary Miguel Cardona said: “Our goal was to have a full impact on the law and to fulfill our commitment to prevent sexual harassment of all students. “Our proposed changes would fully protect students from all forms of sexual discrimination, rather than limiting certain protections to sexual harassment, and would include those protections based on sexual orientation and gender identity.”

Highlights of the proposal

  • Extends coverage of behaviors that occur in off-campus educational activities, including outside the country. (The Trump administration needed to discriminate on campus.)
  • Extends the requirement for mandatory reporting for all employees of colleges that conduct an educational program that have knowledge of an example of sexual inequality.
  • An example of discrimination is the creation of new qualifications for a previous complaint after a student leaves an educational program.
  • An investigation into discrimination requires a “prompt time frame”.
  • Exclusion of interrogation and live hearing requirements from campus hearing rules.
  • Colleges must allow students to participate in live hearings if they choose to do so remotely.
  • Allows unofficial resolution of an incident without submitting a formal complaint. (The Trump administration needed a formal complaint.)
  • Protection is required for pregnant students and staff.

The proposed guideline will go through a period of public comment for the next 60 days. Due to the current evolving legal decision regarding the involvement of transgender students in sports, the administration will be involved in a separate regulation process on student athletes. Senior officials in the department said it was not clear when the process would begin.

The timing of the public comment on the rules is expected to attract a lot of comments and attention. It is hoped that some of the regulations will be challenged in court.

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