Loyola University Chicago School of Law, JD 2023
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.
Changes past, present, and future
Members of Congress were correct to point out that President Biden has shown a clear interest in making changes related to Title IX. In the mere ten months since Biden has been in office, he has already held a public hearing on Title IX enforcement, issued a Q&A document on the Title IX rule, issued a Notice of Interpretation recognizing that Title IX prohibits discrimination on the basis of sexual orientation and gender identity, and halted the enforcement of a requirement that prohibits statements not subject to cross examination.
However, as the letter points out, there is still so much work to do, and good reason to believe that this work will not be completed anytime soon. As the letter discusses, there are credible reports that the Department of Education (“Ed”) is not planning to issue a Notice of Proposed Rulemaking until May 2022. With the need for both a public comment period and an implementation grace-period extended to schools which will need to alter policies in order to be in compliance with new regulations, real changes in schools may not arrive, at the earliest, until late 2023. As the letter explains, the final rule issued by the Trump Administration took twenty-one months to go into effect after the original changes were proposed. If the Biden Administration follows a similar timeline, a final rule will not be in effect until February of 2024, over two years from now.
“Students simply cannot wait this long…”
The letter makes clear that the current timeline for changes to Title IX is a concerning one. In fact, at the end of the letter, they request that Ed issue a “nonenforcement directive” to address several parts of the current Title IX regulations which they find particularly concerning. In so emphasizing, these members of Congress prompt us with an interesting question: as we wait for a final rule, what can different lawmakers do to protect student-survivors?
Alternatives to a final rule
- State laws
Title IX enumerates the minimum standards the schools must meet in protecting survivor-complainant’s civil rights. Simply put, Title IX is the floor and not the ceiling. In recognizing this, many states, including Illinois, California, New York and Virginia, have laws in place to codify certain elements of older Title IX regulations and expand on the rights that student-survivors have as they move through the Title IX process.
Illinois’ Preventing Sexual Violence in Higher Education Act, which was created in large part to codify Obama Era Title IX guidance, does exactly this. For example, the law requires that higher education institutions in Illinois use the preponderance of the evidence standard when issuing findings in a Title IX proceeding. Thus, while the Title IX regulations released under the Trump Administration allow higher education institutions to choose whether they wish to use the previously required preponderance of the evidence standard or the more restrictive clear and convincing standard, Illinois state law has effectively prohibited a school from selecting the standard which makes it more difficult to find for a survivor-complainant.
State laws can be a great way to protect student-survivors. For one, state laws provide a more stable form of protection for student survivors. As evidenced by the above example, state laws can serve to standardize the choices that schools can make under Title IX regulations and are subject to change at a significantly lower rate than federal Title IX related regulations. Federal regulations can change significantly based on the administration’s interest in proposing new final regulations, issuing new guidance, and rescinding old administration’s guidance. Additionally, state laws can expand survivor-complaints rights under Title IX, putting in place more protections for survivors and expanding the baseline standards schools must follow under Title IX.
- The Biden Administration’s other options
Of course, new state laws or changes to existing state laws are not always a perfect solution, and there is clear reason to push for more immediate change on the federal level. Because Title IX takes the “floor, not ceiling” approach, there are many students left without sufficient protection in states that do not have laws to supplement Title IX. For this reason and many others, rolling back the problematic respondent-centric Trump era Title IX regulations is vitally important. Fortunately, there are clear options the Biden Administration can take as it continues the slow process of overhauling the current Title IX regulations. The administration is intimately familiar with several of the tools at their disposal.
First, Ed, under the Biden Administration’s leadership, can continue announcing non-enforcement directives, slowly removing particularly egregious parts of the May 2020 Title IX regulations. A prime example of this type of responsive change is Ed’s recent non-enforcement directive related to cross-examinations. A directive which came in the wake of Victim Rights Law Center et al. v. Cardona, a July federal district court decision which found the live hearing/cross examination requirement under Title IX to be arbitrary and capricious. While this can be an extremely effective mechanism for addressing particularly troubling parts of the May 2020 Title IX regulations, it seems likely that, in keeping with the previous non-enforcement directives issued, under the Biden Administration, this guidance would primarily be released in response to new precedent emerging from Title IX related cases in federal court. The reactive nature of this type of guidance means that this tool may be more limited than is ideal, but it still presents an effective way to address contentious Title IX issues moving from the federal court system.
Secondarily, Ed can issue guidance on topics not directly addressed by the May 2020 regulations. A prime example of this type of guidance is the Notice of Interpretation issued in June of 2021. A mandate which was released as a direct result of the Bostock v. Clayton County. Like their use of non-enforcement directives, if the Biden Administration continues to issue guidance on topics not directly addressed by the May 2020 regulations, it seems likely it will be connected to rulings within the federal court system.
Lastly, the Department of Education under the Biden Administration can continue to issue guidance that clarifies the May 2020 regulations. The July 2021 Q&A is a prime example of this. The benefit of this type of guidance is that such explanations are not tied to changes in federal court cases, and thus are not potentially contingent on the whims of the federal court system. However, there are inherent limitations to what this type of guidance can do, given that its primary objective is to clarify regulations rather than change the meaning of the existing regulations.
While there is no doubt that substantial limitations accompany each possible avenue lawmakers could take to protect survivors waiting for large scale Title IX reform, there is power in knowing that there are potential interim solutions. Solutions which can, and in some cases already have, effectuated widescale positive change in how Title IX cases are handled throughout the country.