Biden’s Proposed Title IX Changes May Not Change Much on Campus

President Joe Biden’s proposed Title IX changes might not be as sweeping in practice as they appear on paper.

Last June, on the 50th anniversary of Title IX, Biden issued a notice of proposed rulemaking to rewrite much of the regulations that dictate how higher education institutions must define and adjudicate sex-based discrimination and harassment claims.

One area of the proposal has been the topic of heated discussion over the past month: due process rights for those accused of sexual misconduct.

The recent proposal would give colleges and universities the option to move away from the court-style live hearing model that requires accusers to be questioned.

Instead, institutions can return to the pre-2020 model of more informal investigations and rulings, according to the proposal. Former President Donald Trump’s administration instituted the change to live hearings in 2020, forcing all schools that receive federal funding to pivot over the past two years.

Now it’s up to these schools to decide whether they want to change back. Brett Sokolow, executive director of the Association of Title IX Administrators, told BestColleges he doesn’t foresee a rush to do so.

Trump’s 2020 rewrite of Title IX rules for sexual misconduct faced backlash at the time. Advocacy groups, including It’s On Us, have said live hearings force victims of sexual assault and harassment to relive trauma and may lead to victims instead choosing not to report.

Many of the schools forced to implement this procedure since 2020, however, may be hesitant to leave it behind, Sokolow said.

This is particularly true with public colleges and universities.

“Public institutions will keep the live hearings, no question about it, for the most part,” he said.

The state-funded nature of public schools means these institutions are more likely to value the due process rights of accused students. He said these public entities are more beholden to uphold constitutional rights.

But that’s not to say that private schools won’t also keep the live hearing model.

Sokolow said he believes many of the more prestigious private institutions will retain the current model for Title IX complaints. These schools tend to value due process rights, even before the 2020 rewrite of Title IX rules forced them in that direction.

Sokolow said he expects the majority — about 60% — of institutions will keep the formal live hearings model. The schools most likely to do so also enroll the most students. Meaning for many in the country, Biden’s rewrite may not impact their due process rights as some worry.

Giving institutions the option, Sokolow added, creates nuance between the different types of institutions. Smaller private institutions, for example, struggle to carry out the more cumbersome live hearings.

Schools that opt for the more informal process for deciding Title IX cases may opt for a single investigator model. This model, which Sokolow said is not ideal, allows one person to be the investigator and judge in each case.

An alternative is to have a separate investigator and decider but still avoid live hearings and cross-examination of accusers.

Sokolow added that moving away from live hearings will likely result in students filing more discrimination and harassment claims. He estimates reporting will increase between 40% and 70% at private schools that suspend live hearings.

Public schools that keep live hearings will also see reports increase about 5-15%, he said. Additional rule changes that make it easier to prove sexual harassment and expand the definition of harassment explain that increase.

“On the whole, there will still be an improvement because these rules will be more accessible,” he said.

The current model turns many students off from filing a Title IX complaint, he said. Many opt for informal resolutions when students learn that the hearing process can take months and that they will have to face someone representing the accused in cross-examination.

“It’s fascinating to see the effect of the existing regulations is a turnoff,” he said. “These [new regulations] are an attempt to recenter the very biased and lopsided existing regulations, and they do that by watering down the current due process protections.”

The due process change in 2020 likely didn’t change the outcomes of cases, only the number of cases filed. He said the hearing process rarely impacts the final decision.

“The quality of the decision is more about the experience and expertise of the decision-maker,” Sokolow said, “not the rights of participants.”