The Biden administration recently issued its Title IX final rule overhaul, and it made substantial changes to the policies promulgated under the previous final rule. There are serious due process concerns to the new final rule, including:
- The definition of sexual harassment is revised such that the standard is lowered and objectivity is removed from the definition, which means that the question is entirely subjective and up to the accuser;
- The single-investigator model is allowed, where a single person investigates, adjudicates, and sanctions the accused without oversight; and
- A student accused of sexual harassment or assault no longer has the right to cross examine their accuser.
What is a final rule? A final rule is a set of guidelines promulgated by the United States Department of Education setting forth guidelines for certain matters, such as the handling of sexual harassment and assault on campuses.
Under the Obama administration, there was not a final rule. Guidance came from the Obama “Dear Colleague” letter, which offered guidance for handling sexual harassment and assault but was written in the legally binding final-rule form. Standards under the Dear Colleague letter were subjective and did not afford the accused many rights. The Trump administration rescinded the Dear Colleague letter and issued its final rule. The Trump final rule articulated more rights for the accused. It also defined sexual harassment as a form of sex discrimination and aimed to hold schools accountable for not reporting or enforcing harassment. The Biden final rule rescinds the Trump final rule and reverts back to the policies in place under the Dear Colleague letter.
At Landon White Law Firm, we expect to see a significant increase in litigation in this Title IX area related to sexual harassment and assault. When universities and schools were operating under the Dear Colleague, we regularly had cases where due process rights were denied during the campus discipline process. We were successful for our clients in these cases. Under the Trump final rule, we saw very few due process cases.
Universities and schools have until 1 August 2024 to come into compliance with the new Biden final rule.
