Education Department rolls back DeVos-era Title IX regulation

NEW EDUCATION DEPARTMENT PARENT COUNCIL DRAWS SKEPTICISM

While the department said it would undergo a separate rule-making process for the application of Title IX to athletics, under the newly released requirements, school athletic programs could be required to include transgender athletes in sports programs based on their gender identity rather than their biological sex or face the loss of federal funding. With a flurry of state laws passed in recent years requiring athletes to compete based on their biological sex, the regulatory proposal sets up yet another conflict between the Biden administration and Republican-led states.

The proposal, which has been expected for months, significantly rolls back the department’s regulatory policy enacted in 2020 under the Trump administration and then-Secretary DeVos. That regulation, which substantially overhauled procedural requirements for universities adjudicating sexual assault and harassment complaints under Title IX, is considered one of the crowning policy achievements of the Trump administration’s Department of Education.

The Trump-era regulation, which went into effect in August 2020, was praised by due process advocates for its provisions mandating that universities hold live hearings for sexual assault cases that include cross-examination of both involved parties by a chosen representative.

Shortly after taking office, the Biden administration announced that it intended to revise the DeVos-era rules, and Thursday’s regulatory proposal, in addition to the expanded definition of sex, significantly overhauls the due process requirements previously enacted.

The new proposal eliminates the requirement for a live hearing and allows schools to conduct and adjudicate sexual assault hearings with a single investigator if the institution so desires.

“Studies have found that information-gathering approaches such as questions asked in individual meetings instead of during a live hearing (sometimes described as inquisitorial procedures) are more likely to produce the truth than adversarial methods like cross-examination,” the regulation states.

The cross-examination requirement in the 2020 rule was largely informed by a 2018 ruling by the U.S. Circuit Court of Appeals for the Sixth Circuit, in which a three-judge panel ruled 2-1 that universities were required to provide an opportunity for cross-examination. In a footnote in that opinion, Judge Amul Thapar, a Trump appointee, cited depictions of cross-examination in the courtroom films My Cousin Vinny and A Few Good Men as evidence that “even popular culture recognizes the importance of cross-examination.”

In its new rule proposal, the Department of Education noted that its removal of the cross-examination requirement would not apply to the states under the jurisdiction of the Sixth Circuit — Tennessee, Kentucky, Ohio, and Michigan — but made clear it did not entirely agree with the appellate court’s holding.

“The Department notes, however, that the Sixth Circuit did not consider whether examination by a neutral party (at either a live hearing or in separate meetings with the parties) would be sufficient to satisfy its view of constitutional due process,” the rule says.

The proposed changes came on the 50th anniversary of the landmark Title IX law, which paved the way for women’s access to sports.

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“As we celebrate the 50th Anniversary of this landmark law, our proposed changes will allow us to continue that progress and ensure all our nation’s students — no matter where they live, who they are, or whom they love — can learn, grow, and thrive in school,” U.S. Secretary of Education Miguel Cardona said in a statement. “We welcome public comment on these critical regulations so we can further the Biden-Harris Administration’s mission of creating educational environments free from sex discrimination and sexual violence.”