Monday, July 04, 2022

Biden's Title IX reforms would roll back Trump-era rules, expand victim protections


DUSTIN JONESTwitter
NPR
June 23, 2022



Education Secretary Miguel Cardona speaks at the White House on April 27. The Biden administration proposed a dramatic rewrite of campus sexual assault rules on Thursday, moving to expand protections for LGBTQ students, bolster the rights of victims and widen colleges' responsibilities in addressing sexual misconduct.Susan Walsh/AP

The Department of Education said Thursday that it plans to reinstate Title IX regulations tossed out by the Trump administration. Proposed changes would combat sexual discrimination in schools by boosting victim protections and modifying language to include sexual orientation and gender identity for LGBTQI+ students.

Thursday marked the 50th anniversary of the Title IX of the Education Amendments of 1972, more commonly known as Title IX, which protects students from sexual discrimination in educational programs and activities.


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To commemorate the occasion, President Biden and the Department of Education announced proposed amendments to the legislation that would reinstate victim protections that were rolled back by President Donald Trump.

"Over the last fifty years, our nation has made monumental progress in advancing equity and equality for all students, including by narrowing gender gaps in sports, expanding opportunities in science and technology fields, and protecting students from sex discrimination, including sex-based harassment and sexual violence," Biden said in White House statement.

"This is what America is all about: possibilities. Millions of women and girls have benefited from the change that Title IX helped make possible," he added.
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What changes are in the proposed amendments

The Department of Education said the amendments will include clarifying text to include protections against discrimination based on sexual orientation and gender identity to strengthen the rights of LGBTQI+ students.

"They would make clear that preventing someone from participating in school programs and activities consistent with their gender identity would cause harm in violation of Title IX, except in some limited areas set out in the statute or regulations," the department said.

The department also said it plans to issue a separate notice of proposed rulemaking to address whether and how the agency should amend the Title IX regulations to address students' eligibility to participate on a particular male or female athletics team.


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Amendments will also include language to prevent discrimination base on sex stereotypes and pregnancy, the department said. It would require schools to provide reasonable modifications for pregnant students and reasonable break time for pregnant employees as well as lactation spaces.

And parents, guardians and a student's authorized legal representative would have greater protections to act on a student's behalf. That would allow these parties to seek assistance under Title IX and participate in grievance procedures, the department said.
Restoring victim protections

In May 2020, Trump's education secretary, Betsy DeVos, announced sweeping Title IX changes that reduced schools' reporting responsibilities and strengthened the rights of the accused. The changes were believed to be a "more reliable adjudication process that is fair to all students," the department said in 2020.

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The Biden administration's proposed changes would reverse many of the previous controversial rules.

"Those regulations weakened protections for survivors of sexual assault and diminished the promise of an education free from discrimination," the department said Thursday.

Under the Trump-era regulations, some forms of sex-based harassment weren't considered to be Title IX violations. But the proposed changes, which will undergo a public comment period before being finalized, will include all "unwelcome sex-based conduct that creates a hostile environment by denying or limiting a person's ability to participate in or benefit from a school's education program or activity."


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Betsy DeVos Signals A Pullback On Campus Sex Misconduct Enforcement

The Trump administration's version of Title IX, which remains in place until the amendments are approved, only requires educational institutions to investigate formal sexual harassment complaints. The Department of Education said it would keep as much of the current regulation as possible to ensure consistency, but Biden's changes would require schools to investigate all complaints.

Biden Administration’s New Title IX Rules Expand Transgender Student Protections

While undoing some Trump-era provisions aimed to protect the rights of those accused of sexual harassment, the proposal sidesteps athletics — for now
Education Secretary Miguel Cardona testifies before Congress, June 7, 2022. Cardona on Thursday proposed sweeping new protections for transgender students and others in a rewrite of federal Title IX regulations. (Oliver Contreras/The Washington Post via Getty Images)

By Greg Toppo June 23, 2022

The Biden administration is pursuing sweeping new changes to federal Title IX law to restore “crucial protections” for victims of sexual harassment, assault, and sex-based discrimination that it maintains they lost during the Trump administration.

Under the proposed changes, announced Thursday, the law would protect victims against discrimination based not just on sex but on sexual orientation and gender identity, in effect adding transgender students as a protected class. Current regulations are silent on these students’ rights.

But the proposal sidesteps the question of transgender athletes’ rights to compete in girls’ sports, an explosive issue administration officials said will get its own set of regulations at a later date.

Related:
GOP-Led States, Ed Dept. Headed for ‘Showdown’ Over Transgender Students’ Rights


“This is personal to me as an educator and as a father,” U.S. Education Secretary Miguel Cardona said during the announcement. “I want the same opportunities afforded to my daughter and my son — and my transgender cousin — so they can achieve their potential and reach their dreams.”

The changes come 50 years to the day after President Richard Nixon signed the federal civil rights law that bans sex discrimination in education.

Cardona on Thursday noted that LGBTQ youth “face bullying and harassment, experience higher rates of anxiety, depression, and suicide, and too often grow up feeling that they don’t belong.”

The proposed regulations, he said, “send a loud message to these students and all our students: You belong in our schools. You have worthy dreams and incredible talents. You deserve the opportunity to shine authentically and unapologetically. The Biden-Harris administration has your back.”

Education and civil rights groups welcomed the proposed rules, with Ronn Nozoe, CEO of the National Association of Secondary School Principals saying they “greatly strengthen principals’ abilities to ensure schools provide what students need.”

Amit Paley, CEO of The Trevor Project, a suicide prevention and mental health organization for LGBTQ youth, applauded the administration’s bid to extend Title IX protections to sexual orientation and gender identity, saying, “School should be a place where students learn and are comfortable being themselves, not a source of bullying and discrimination.”

Related:
Deja Vu as Ed Department Revisits Contentious School Sexual Misconduct Rules


But the proposed rules irked some conservative groups. In a statement, Nicole Neily, president of Parents Defending Education, called the move a “federal overreach” and dubbed the proposed regulations “The Biden administration’s ‘Must Say They’ rewrite of Title IX,” refering to the preferred pronoun of some who are transgender.

“American families should be deeply concerned by the proposed rewrite of Title IX,” Neily said. “From rolling back due process protections, to stomping on the First Amendment, to adding ‘sexual orientation and gender identity’ into a statute that can only be so changed by Congressional action, the Biden Administration has shown that they place the demands of a small group of political activists above the concerns of millions of families across the country.”

Taken together, the proposed regulations would create a sharp contrast to Trump administration rules adopted in 2020 under then-Education Secretary Betsy DeVos. Under DeVos, for instance, schools were prohibited from opening Title IX cases if an alleged assault took place away from school grounds. Under the new rules, schools would be required to address “hostile environments” in programs and activities, even if the conduct that contributed to the hostile environment “occurred off-campus or outside the United States,” a senior official told reporters.

“Our view now is that the existing regulations do not best fulfill Congress’ mandate in Title IX,” the official said. “There is more we can do to ensure that students do not experience sex discrimination in school.”
Transgender rights advocates stood outside of the Ohio Statehouse in 2021 to oppose and bring attention to an amendment to a bill that would ban transgender women from participating in high school and college women’s sports. (Stephen Zenner/Getty Images)

Cardona’s proposed changes both expand the definition of sexual harassment and potentially limit opportunities for students accused of sexual assault or harassment to confront their accusers. Administration officials said the new regulations would require schools to take “prompt and effective” action on campus sex discrimination.

But they also said the regulations in effect loosen requirements on schools’ sex assault investigations: The proposed rules, for instance, would “permit but not require” schools to hold live hearings in which accused students can directly confront survivors.

A senior department official, who briefed reporters Thursday on background, said the administration has concluded that a live hearing, which resembles a courtroom procedure, “is one, but not the only way, to address investigation and to determine what has occurred.” The official noted that the vast majority of schools were not conducting live hearings before the Trump administration began requiring them in 2020. “And it was clear to us that a live hearing was not essential to determination of outcomes and a fair process,” the official said.

In a statement, Sen. Richard Burr (R-NC), said the move “returns to the deeply flawed campus disciplinary process of the Obama Administration, which led to hundreds of inconsistent judgements and more than 300 legal challenges. The existing rule struck a balance that follows the law and is fair to both parties.”
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Women Who Fought for Title IX 50 Years Ago Divided Over Transgender Inclusion


Notably absent from Thursday’s announcement was any mention of Title IX’s application to athletics, which has caused a furor due to a handful of transgender athletes’ bids to compete in girls’ sporting events.

The administration said it will engage in a separate rulemaking process to address the law’s application to athletics and gender, but offered no immediate timeline for the process. A senior department official said the topic “deserves its own separate rule-making process.”

Administration officials have previously said Title IX, which prohibits sex discrimination and harassment in programs receiving federal funds, will echo the Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia, which extended protections against sexual harassment and discrimination in the workplace to LGBTQ employees.

While the department’s interpretation of the Bostock ruling doesn’t mention sports, the Biden administration last year filed a brief in a West Virginia case in which a transgender girl who wants to compete with girls on her middle school cross country team is challenging the state’s 2021 law banning students born as male from participating in girls’ sports.

Vice President Kamala Harris and Education Secretary Miguel Cardona watch schoolgirls playing basketball during a Title IX 50th Anniversary Field Day event at American University Wednesday. (Alex Wong/Getty Images)

A group of 15 Republican-led states, led by Montana Attorney General Austin Knudsen, has threatened to challenge the regulations in court,. Since last year, a dozen states have passed legislation prohibiting trans females from competing in girls’ and women’s sports.

Last week, the International Swimming Federation, the world governing body for swimming, voted to prohibit transgender athletes from competing in high-level women’s competitions unless they began medical treatments to suppress testosterone production early in their lives.

The group, known internationally as Fédération internationale de natation, or FINA, said it would also establish a new, “open” category for athletes who identify as women but do not meet the requirement to compete against people who were female at birth.

By contrast, World Cup and Olympic soccer star Megan Rapinoe told TIME last week that she is “100 percent supportive of trans inclusion” in sports, noting that what most people know about the topic comes from “relentless” conservative talking points that don’t reflect reality.

“Show me the evidence that trans women are taking everyone’s scholarships, are dominating in every sport, are winning every title,” she said. “I’m sorry, it’s just not happening. So we need to start from inclusion, period. And as things arise, I have confidence that we can figure it out. But we can’t start at the opposite. That is cruel. And frankly, it’s just disgusting.”

The public has 60 days to send comments on the new proposal, which could take several months to finalize.

LGBTQ Students Would Get New Protections Under Biden Plan

The rights of LGBTQ students would become enshrined in federal law and victims of campus sexual assault would gain new protections under new rules proposed by the Biden administration.

COLLIN BINKLEY
Jun 23, 2022,


The rights of LGBTQ students would become enshrined in federal law and victims of campus sexual assault would gain new protections under new rules proposed by the Biden administration on Thursday.

The proposal, announced on the 50th anniversary of the Title IX women’s rights law, is intended to replace a set of controversial rules issued during the Trump administration by Education Secretary Betsy DeVos.

President Joe Biden’s education secretary, Miguel Cardona, said that even though there have been significant strides toward gender equality, discrimination and sexual violence persist.

“Even as we celebrate all the progress we’ve achieved, standing up for equal access and inclusion is as important as ever before,” he said.

The proposal is almost certain to be challenged by conservatives, and it is expected to lead to new legal battles over the rights of transgender students in schools, especially in sports. It now faces a public feedback period before the administration can finalize any changes, meaning the earliest that the policy is likely to take effect is next year.

The step meets a demand from victims rights advocates who wanted Biden to release new rules no later than the anniversary of Title IX, which outlaws discrimination based on sex in schools and colleges. Advocates say DeVos’ rules have gone too far in protecting students accused of sexual misconduct, at the expense of victims.

As a presidential candidate, Biden had promised a quick end to DeVos’ rules, saying they would “shame and silence survivors.”

In announcing its proposal, Biden’s Education Department said DeVos’ rules “weakened protections for survivors of sexual assault and diminished the promise of an education free from discrimination.”

For the first time, the rules would formally protect LGBTQ students under Title IX. Nothing in the 1972 law explicitly addresses the topic, but the new proposal would clarify that the law applies to discrimination based on sexual orientation and gender identity.

It would make clear that “preventing someone from participating in school programs and activities consistent with their gender identity would cause harm in violation of Title IX,” according to the department. More specific rules dealing with the rights of transgender students in school sports will be released later, the department said.

Biden marked the anniversary of Title IX by acknowledging the impact the law has had in advancing equity but acknowledging there was more to do.

“As we look to the next 50 years, I am committed to protecting this progress and working to achieve full equality, inclusion, and dignity for women and girls, LGBTQI+ Americans, all students, and all Americans,” he said in a statement.

Many of the proposed changes would restore Obama-era rules that DeVos’ policy replaced.

The definition of sexual harassment would be expanded to cover a wider range of misconduct. Schools would be required to address any allegation that creates a “hostile environment” for students, even if the misconduct arises off campus. Most college employees, including professors and coaches, would be required to notify campus officials if they learn of potential sex discrimination.

In a victory for victims rights advocates, the proposal would eliminate a rule requiring colleges to hold live hearings to investigate sexual misconduct cases — one of the most divisive aspects of DeVos’ policy. Live hearings would be allowed under the new policy, but colleges could also appoint campus officials to question students separately.

Biden’s action drew praise from victims rights groups, LGBTQ advocates and Democratic lawmakers.

“These proposed regulations demonstrate a strong commitment to protecting educational opportunities for all students including LGBTQ students,” said Janson Wu executive director of Gay and Lesbian Advocates and Defenders. “Especially in light of ongoing state legislative attacks, we are grateful for the administration’s strong support of LGBTQ youth.”

Republicans in Congress were quick to denounce the proposal. Rep. Virginia Foxx of North Carolina, the top Republican on the House Education and Labor Committee, said the rules will “demolish due process rights and the safety of young women and girls across the country, with promised regulations still to come to undermine women’s access to athletic opportunities.”

If the proposal is finalized, it would mark the second rewrite of federal Title IX rules in two years. DeVos’ rules were themselves intended to reverse Obama-era guidance. The Obama policy was embraced by victims advocates but led to hundreds of lawsuits from accused students who said their colleges failed to give them a fair process to defend themselves.

The whiplash has left many schools scrambling to adopt ever-changing rules. Some have pressed for a political middle ground that will protect students without prompting new rules every time the White House changes power.

“It doesn’t serve anybody’s interest to have this ping-pong effect of changing rules every five years,” said S. Daniel Carter, a campus security consultant and president of Safety Advisors for Educational Campuses. “That’s just not a good way to get things done. It’s very difficult for everyone involved.”

DeVos’ rules dramatically reshaped the way colleges handle allegations of sexual assault and harassment, with an emphasis on ensuring the constitutional due process rights of the accused.

Under her rules, accused students were given wider rights to review and respond to evidence against them, and students had the right to cross-examine one another through a representative at live hearings.

The live hearing requirement was applauded as a victory for accused students, but it drew intense backlash from other advocates who said it forced victims to relive their trauma.

DeVos also reduced colleges’ obligations in responding to complaints. Her policy narrowed the definition of harassment and scaled back the types of cases colleges are required to address. As a result, some campuses have seen steep decreases in the number of Title IX complaints coming in from students.

Under her rules, for example, colleges are not required to investigate most complaints that arise off campus, and they do not have to act on any complaint unless the alleged misconduct is “severe, pervasive and objectively offensive.”

The overhaul was partly meant to lighten the burden on colleges as they mediate complex cases, but some say it ultimately added more work.

Leaders of some colleges have said the DeVos rules are too prescriptive and force them to turn campus discipline systems into miniature courtrooms. Many schools have continued to address all sexual misconduct complaints even if they do not meet the narrowed harassment definition, but they have had to set up separate discipline processes to handle those cases.

Advocates on both sides say that can be confusing for students.

“It shouldn’t be that way. It should be, if anything, more uniform — that’s the whole reason the Title IX regulations were put into place,” said Kimberly Lau, a New York lawyer who represents students in Title IX cases

Biden’s proposal is a major step in keeping his promise to reverse DeVos’ rules. He started the process last year when he ordered the Education Department to review the rules, but the agency has been bogged down by a slow-moving rule-making process.
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For more on Title IX’s impact, read AP’s full report: https://apnews.com/hub/title-ix

Video timeline: https://www.youtube.com/watch?v=NdgNI6BZpw0

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The Associated Press education team receives support from the Carnegie Corporation of New York. The AP is solely responsible for all content.


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