On June 23 — the 50th anniversary of Title IX of the Education Amendments of 1972 — the Department of Education proposed sweeping new regulations to govern allegations of campus sexual misconduct. This marks the third time in as many presidential administrations that colleges and universities confront major changes to Title IX procedures.
While Title IX continues to play a pivotal role in preserving and promoting gender equity and the proposed regulations contain many positive elements, it’s high time to get off the Title IX roller coaster. The best option, in our view, is a bi-partisan commission that will design a fair, stable, and manageable process and provide colleges and universities some flexibility to develop approaches best suited to their own communities.
In 2011, the Obama administration’s Office for Civil Rights (OCR) issued its famous “Dear Colleague” letter, a 19-page document specifying how colleges and universities should handle sexual assault, harassment, and discrimination claims. Although the guidance was not legally binding, OCR made clear that noncompliance might result in the loss of an institution’s federal funding.
Citing a National Institute of Justice report that one in five women are victims of completed or attempted sexual assault while in college, the letter adopted a broad definition of sexual harassment, mandated use of the preponderance-of-the-evidence standard, allowed complainants as well as respondents to appeal, strongly discouraged cross-examination of complainants, and set 60 days as the benchmark for timely resolution. At the same time, OCR began investigating allegations of inappropriate Title IX practices at hundreds of individual schools. In response, colleges and universities revamped their Title IX processes, hired Title IX coordinators, educators, and investigators, and stepped up training for students and employees.
Noting that the “Dear Colleague” letter did not go through the formal rulemaking process, critics attacked what they saw as a dearth of due process protections for the accused. They mocked campus tribunals as “kangaroo courts” succumbing to pressure from government and campus activists to find accused students responsible. Lawsuits by accused students against universities proliferated, with over 500 such suits filed between 2011 and 2019.
The Trump administration rescinded the “Dear Colleague” letter in 2017, and after an extended formal rulemaking process, mandated a quasi-judicial process in 2020 with live hearings and cross-examination of parties and witnesses, technical evidentiary procedures, and a narrowed definition of sexual harassment. Critics of the new rules complained that they created an expensive and “monumentally complex bureaucracy” with a “chilling effect on victims.”
Barely two years later, in what has become a game of “political ping-pong,” the Biden administration is undoing many of the Trump administration changes and adding its own requirements.
The proposed new rules permit — but do not require — live hearings and cross examination, expand the definition of sex-based discrimination to include discrimination on the basis of sex stereotypes, pregnancy, sexual orientation, and gender identity, eliminate the requirement that college officials have “actual knowledge” of alleged misconduct as a trigger for investigation, require campus authorities to address misconduct that takes place off campus as well as on, effectively require use of the preponderance-of-the-evidence standard, and increase training and support obligations.
Although policies at many institutions already reflect some of the provisions that would be mandated under the proposed new rules, the constantly expanding and contracting scope of the federal mandate creates confusion, uncertainty, and expense.
Each time the rules change, college and university lawyers, Title IX coordinators, and other campus officials must sort through complicated and often obscure guidance to understand what is required of them. The Trump rules came with 2,000 pages of guidance; the Biden administration’s rules clocked in at a comparatively svelte 650 pages.
At the same time, colleges and universities must try to reconcile the new rules with sometimes conflicting state laws and court decisions. As much as colleges and universities might like to do away with live hearings and cross examination, for example, some courts consider both essential to a fair process. In some jurisdictions, doing away with either “will invite lawsuits by those found responsible for sexual misconduct.”
And the Supreme Court’s decision overturning Roe v. Wade will make adhering to new regulations about accommodations for pregnant students and those who have miscarriages or abortions — without violating fast-changing state laws or creating records that might be used against them — extremely challenging.
And once again, colleges and universities must redesign their training and education programs. Apart from the time, energy, legal fees and other costs, the Title IX roller coaster disrupts “schools’ ability to provide safe learning environments” and undermines confidence in the reliability and fairness of campus processes.
If Republicans retake the White House in 2024, colleges and universities can expect to do it all over again.
It’s time for a different approach.
A bi-partisan commission should be asked to make recommendations that foster greater accountability for campus sexual misconduct while still providing a fair process for the accused. The commission should take into account the limitations of higher education disciplinary procedures, the inability of colleges and universities to compel testimony or production of evidence, and the need for streamlined procedures that allow for reasonably prompt resolution of cases that now drag on for many months. The commission might, for example, consider a two-tier system in which the most serious cases are referred to professionally staffed Department of Education regional investigation centers. The commission should also focus as much or more on prevention as on punishment.
Even if a legislative solution is out of reach in today’s hyper-partisan political environment, the work of a bipartisan commission might at least help identify rules that can last beyond a single administration.
Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Isaac Kramnick) of Cornell: A History, 1940-2015.
David Wippman is the President of Hamilton College.