Proposed Title IX settlement rolls back Trump-era policies, raising concerns among higher education experts | New
The U.S. Department of Education released proposed changes to Title IX regulations on June 23 to celebrate the policy’s 50th anniversary, drawing mixed reviews from higher education experts.
Passed in 1972, Title IX prohibits discrimination based on sex in educational institutions that receive federal funding. The June 23 proposal follows an executive order issued by President Biden in March 2021, which prompted more than a year of listening sessions and meetings with key stakeholders, advocates, students and parents.
The amendments are intended to clarify and strengthen protections for survivors who have been “weakened” under the Trump administration, according to a department press release.
“The proposed settlement will advance the Title IX objective of ensuring that no one experiences gender discrimination, sexual harassment, or sexual violence in education,” the press release reads.
Amendments proposed on June 23 would expand the existing definition of sexual harassment to include “unwelcome sexual conduct” that limits an individual’s upbringing, as well as discrimination based on gender stereotypes, gender identity and pregnancy. The proposal would also require schools to act “promptly and effectively” in response to complaints of sex discrimination.
The proposal will remain open for public comment for 60 days.
The changes respond to widespread opposition to the previous administration’s limited definition of sexual harassment and discrimination, according to Title IX and student rights attorney Naomi R. Shatz.
“I think it’s a good thing to require schools to address the full spectrum of sexual harassment or sexual misconduct that can occur,” Shatz said. “I think the definition under the existing regulations of what sexual harassment is in Title IX is too narrow.”
Title IX guidelines were amended under the Trump administration to narrow the definition of sexual misconduct to “unwelcome conduct that is so serious, pervasive, and objectively offensive that it effectively deprives a person of equal access to the program or the educational activity of a school”. Under the Obama administration, sexual harassment encompassed all “unwelcome behavior of a sexual nature”, including “demands for sexual favors and any other verbal, non-verbal or physical behavior of a sexual nature”.
Title IX attorney Andrew T. Miltenberg, however, expressed concern that schools will not have sufficient resources to resolve gender discrimination cases if Title IX complaints “significantly increase.” in number according to the broader definition.
“In turn, the proposed Title IX regulations provide educational institutions with greater latitude in developing their own policies and procedures,” Miltenberg wrote in an email. “However, our concern is that the overall effect will be to marginalize due process protections in favor of streamlined resolutions to meet the increased demand for resources under the broader definition of sexual harassment.”
The University released its own proposed changes to the school’s policies on discrimination and sexual harassment in April, changing its definition of consent to “active and mutual agreement.” Harvard Affiliates will be able to provide comments on these changes until the end of September.
Harvard will review the department’s Title IX changes in conjunction with the university’s changing policies, according to university spokesman Jason A. Newton.
“The University is reviewing the proposed changes to consider the implications with our current and proposed policies,” Newton wrote in an emailed statement.
Miltenberg, who has been involved in about 15 Title IX cases at Harvard, called the current Title IX proceedings at the university “intentionally opaque” and “extremely slow.” Harvard allows “hearsay, gossip and innuendo” during trials, according to Miltenberg, which puts the defendant at a disadvantage.
“I consider that Harvard’s Title IX policies and procedures already lack reasonable due process protections for a defendant,” Miltenberg wrote. “The proposed settlement and, what I suspect is Harvard’s enforcement of these changes, will only serve to further erode a defendant’s ability to fairly and fairly defend themselves against allegations that often change their life.”
Newton declined to comment on Miltenberg’s criticism.
Harvard Law School Professor Emeritus Elizabeth Bartholet raised similar concerns that the proposal would diminish the defendant’s rights.
“I recognize that there are some proposed improvements, particularly in the definition of sexual harassment and gender discrimination,” Bartholet wrote in an email. “However, I am concerned about the reduction in fair process for defendants, including the elimination of the requirement for a live hearing, and I am concerned about the proposed standard of proof (generally encouraging a standard of preponderance rather than a clear and convincing standard of proof).”
William M. Sutton ’23, an organizer with the sexual assault advocacy organization Our Harvard Can Do Better, wrote in an email that the group views the proposal as a “significant improvement” over the title’s policies. IX of the Trump era. But the organization remains critical of Harvard’s efforts to end sexual violence on campus, according to Sutton.
“Even at their best, the Title IX rules offer only some form of remedy — they do not prevent sexual violence and rarely help survivors fully recover from it,” Sutton wrote. “Harvard can and should invest heavily in preventing sexual violence in our community.”
“It is unconscionable that the wealthiest university in the world is not mobilizing all of its resources to end the sexual violence crisis in our community,” he added.
—Editor Anjeli R. Macaranas can be reached at [email protected]
—Editor Mayesha R. Soshi can be reached at [email protected]