New Title IX Proposals Keep Ban on Discipline During Sexual Misconduct Investigations

Adam WellsJune 23, 2022

SEATTLE, WASHINGTON - MAY 22: A patch celebrating 50 years of Title IX is seen on the jersey of Sam Hiatt #17 of OL Reign after the game against the Washington Spirit at Lumen Field on May 22, 2022 in Seattle, Washington. (Photo by Steph Chambers/Getty Images)
Steph Chambers/Getty Images

On the 50th anniversary of Title IX being signed into law, the United States Department of Education has proposed new and revised regulations.

Per ESPN's Paula Lavigne, Thursday's proposal would keep in place a provision from President Donald Trump's administration that "prevents disciplinary action against students until an investigation has determined they were at fault," including in cases of alleged sexual assault or misconduct.

The new proposals include formal protections for LGBTQ+ students by making it clear that "preventing someone from participating in school programs and activities consistent with their gender identity would cause harm in violation of Title IX," though specific regulations around transgender athletes were not included.

Instead, the Department of Education said it will engage in separate rulemaking "to address whether and how the Department should amend the Title IX regulations to address students' eligibility to participate on a particular male or female athletics team."

U.S. Department of Education Secretary Miguel Cardona told reporters during Thursday's media call that LGBTQ+ protections were important to include in the proposals.

"Together, we must seize this opportunity to better protect LGBTQ youth who face bullying and harassment, experience higher rates of anxiety, depression and suicide, and too often grow up feeling that they don't belong," Cardona said. "You belong in our schools. You have worthy dreams and incredible talents. You deserve the opportunity to shine authentically and unapologetically. The Biden-Harris administration has your back."

The Title IX sexual misconduct policies adopted by the Trump administration in May 2020 were met with widespread criticism.

Nicole Bedara of TIME said the rule at its most basic level "will make it harder than ever for survivors to understand their legal rights—and if survivors can’t understand their rights, it’s very unlikely that they will use them."

Thursday's new proposals include broadening "the definition of sex-based harassment and discrimination."

There are also proposed changes of regulations to include reports of incidents that occur off-campus but within a school's Title IX jurisdiction, to require schools to use a "preponderance-of-the-evidence standard of proof" and to permit "a live hearing in which those who report incidents and those who are accused can be cross-examined, and allow for such hearings to happen in a virtual setting where the parties are not in direct proximity."

Lavigne noted live hearings are currently required in most cases. A final ruling on the proposals will be made within 60 days after a public comment period.

Title IX was adopted as part of the Education Amendments of 1972. The amendment prohibits sex-based discrimination in any school or education program that receives federal government funding.