It has been more than 100 days since the overturning of Roe v. Wade. In the wake of this decision, on October 4, the Biden administration reinforced guidelines regarding legal protections related to abortion and pregnancy under Title IX.
On Friday, September 30th, the Michigan State University Board of Trustees released an audit conducted earlier this month on the Title IX certification process. This audit was conducted after concerns arose regarding failure of compliance with the state-mandated Title IX certification process last year. Michigan State University President, Samuel Stanley, is at the forefront of the investigations.
Where Title IX offices exist, controversy follows. While certain students attending four year higher education institutions (HEIs) may feel empowered or supported by their Title IX offices, in my experience, many more feel mistrust, pain, and neglect. In my time as a student at three different HEIs, I was constantly surrounded by women and queer people in pain. Sometimes, this pain came in the form of a friend stating they did not want to engage with the Title IX office because they wholeheartedly believed nothing substantive would come of reporting. Other times, the pain came in the form of large groups of students making it known that they felt betrayed by their school’s Title IX office, unsupported and ill-equipped to advocate for themselves and their friends.
A recent article in the Loyola Phoenix, pointedly entitled, They Just Didn’t Make It Very Easy For Us’: Three Loyola Students Voice Frustrations with Loyola’s Sexual Assault Investigation Process, named only some of the many critiques students have of Title IX offices. The voices of these students are valid. Change can, should, and must be made. Any response which does not acknowledge these two realities ignores the pain so many young people are clearly feeling. Refusal to diligently, and in good faith, work on improving protections for survivors throughout HEI campuses is a failure, in every sense of the term.
With the Biden administrations new proposed Title IX regulations set to be published in April of this year, attorneys and advocates alike have been left to speculate as to what changes the Department of Education (ED) will propose. Among this speculation, is a narrower question: will ED, in their proposed Title IX regulations, finally state directly that universities can be held liable for deliberate indifference to known sexual harassment perpetrated by a non-student guest? At this point, any answer to this threshold inquiry would be speculative, but there are a few indicators that suggest the answer may be yes.
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.