On September 13, more than thirty members of Congress sent a letter to the Secretary of Education, Miguel Cardona, urging the Biden Administration to continue to build on the steps the administration has taken thus far to protect survivor-complaints from sexual misconduct. The letter emphasized President Biden’s clear interest in Title IX reform, celebrating many of the changes he has made since coming into office. However, alongside this praise, came the enumeration of several remaining concerns born out of the Trump Administrations widely criticized May 2020 Title IX regulations.
On August 24, 2021, the U.S. Department of Education’s Office for Civil Rights (OCR), released guidance clarifying that, effective immediately, it will stop the enforcement of 34 C.F.R. § 106.45(b)(6)(i). With this new guidance, a decision-maker at a post-secondary school may now consider outside information submitted by a survivor-complainant during the Title IX grievance process, even if the survivor-complainant does not partake in cross-examination.
In May of last year, the U.S. Department of Education’s Office for Civil Rights (OCR) released a Final Rule, amending the regulations implementing Title IX of the Education Amendments of 1972. With this guidance came a plethora of changes to how recipients of Federal financial assistance covered by Title IX must respond to allegations of sex-based discrimination. Amongst the most notable changes to these regulations, was the clarification that a reasonable person standard applies to certain elements which are, at times, necessary to prove sexual harassment under Title IX.
To ensure safety and the best experience for athletes to excel in sports, eligibility to play on certain teams and at varying levels of competition has long depended on individuals’ biological factors, the primary factor being sex. This established practice of separating sport participation by two categories, male and female based upon the sex assigned at birth is being reexamined, particularly as it relates to individuals who were born male, now identify as female, and desire to compete in women’s sport. The federal government, state governments, and sport governing bodies are addressing the matters presented by athletes who transition genders, with opposition by both sides of the issues seemingly being the only commonality.
Single-sex educational opportunities are many and varied, from all girls or boys’ private schools and colleges to single-sex classes offered in some public schools. Title IX established the framework in which schools can establish these single-sex programs to ensure their fairness and constitutionality. Individuals advocate for these types of programs under the assumption that the programs help students achieve greater academic performance. While there is no conclusive research supporting this theory, the ample anecdotal testimony and success stories from schools with these programs, offer a compelling voice in support of single-sex education. Some of these success stories come from schools in Illinois where single-sex classes have been recently implemented into the curriculum.
On May 19, 2020, the Department of Education published a final Title IX regulation that changes the rights and responsibilities for schools, complainants, and respondents. In summary, these regulations respond to the need to provide a prompt and just response to individuals who have suffered sexual harassment and provide due process for an alleged perpetrator. These changes create a standard grievance process, define conduct that constitutes sexual harassment, outline conditions that activate a school’s obligation to respond, impose a minimum standard of school response, and establish procedural due process protections.
On November 16, 2018, the Department of Education through its Office for Civil Rights, opened a series of proposed regulations for public comment. Interested parties anticipated the release of the regulations for some time, following the Department of Education’s 2017 rescission of the Obama administration’s 2011 “Dear Colleague”. The 2011 letter required educational institutions receiving federal funds to use a preponderance of the evidence standard in adjudicating institutional sexual assault proceedings, among other things. The recent proposal makes that standard permissive, rather than mandatory, while stressing that institutional proceedings must preserve a presumption of innocence on the part of the accused. Though many groups applaud the new proposals, others raise concerns that the proposals stand to harm victims of sexual assault.
In a world where sexual assault occurrences on college campuses are becoming more readily recognized and reported, one of the many arising issues is how to appropriately respond to the allegations. Facing college disciplinary boards is one of the principal battlegrounds. With cases of sexual assault often lacking enough evidence for police action, many have demanded that colleges take responsibility for their students’ safety. However, in a situation where it is already “he said, she said,” what is the appropriate evidentiary standard for reprimand?
The NCAA has focused on gender equality in intercollegiate athletics by complying with federal and state laws and establishing an inclusive environment free of gender bias. This article outlines some of the challenges colleges face in maintaining compliance with these laws.