Strategies for Dealing With The Delayed Release of the Title IX Amendments: Prevent Getting Caught in an October Bind

By, Collin Williams

On June 22, 2022, the U.S. Department of Education released proposed amendments (the “Biden Amendments”) to Title IX of the Higher Education Amendments of 1972 (“Title IX”).? Among many changes, the Biden Amendments include substantial alterations to how federally funded educational institutions (from elementary schools all the way through colleges and universities) will have to deal with: (a) the definition of “sex discrimination” expanding to include gender identity, sex-related characteristics, transgender or non-binary status, sex stereotypes and/or LGBTQ+ status; (b)? the participation of transgender and non-binary students in athletics, which runs directly contrary to legislation in at least 21 states; (c) a change to the standard of proof required in sexual assault cases from a preponderance of the evidence to clear and convincing evidence; (d) increased protections against discrimination for pregnant or expecting students; (e) the elimination of mandated live hearings with cross-examination; (f) the allowance of informal resolution processes prior to the filing of a formal complaint which may significantly increase the number of Title IX disputes that are submitted for resolution.?

Initially, after the proposed Biden Amendments were released it was expected that a public comment period would be followed by full enactment and implementation in May, 2023.? On May 26, 2023, however, the Department of Education announced that the Biden Amendments would not be formally passed until at least October, 2023, a five month delay that puts the potential release squarely in the middle of the first half of the school year.? This creates a myriad of implementation problems that could cripple Title IX departments should they not be prepare effectively.??

Early Drafting and Dissemination of Policies to Prevent Undue Surprise

Legislation provides the overarching law, but it has to be implemented on a school by school basis.? The only way that can be done is the creation of policies.? These policies will differ based on the time, money, bandwidth and resources available at the particular school.? Regardless, there needs to be something written down and accessible so it can be referenced by students, staff and faculty alike.? Given the multitude of changes proposed by the Biden Amendments, this drafting should start now.? Because once the Biden Amendments are officially passed, it is highly unlikely that there will be any lead time allowed for drafting implementation policies.? More than likely, this will be a light switch: one day the old policies will apply and the next day, everything will be governed by the Biden Amendments.

Additionally, these policies need to be disseminated publicly so all interested parties are aware of the state of play.? Determining the best way to ensure proper and fulsome dissemination may also take substantial time and planning.? Accordingly, neither drafting nor a distribution plan should be left until the school year has started.??????

Training and Resources for School Staff and Administration

Even when policies have been drafted and disseminated throughout the institution, it’s highly unlikely there will be 100% understanding of those policies.? Moreover, even if there is a fundamental understanding of the policies, there may be confusion or, more likely, disagreement about how those policies should be implemented.? Cogent training and resources that set forth a uniform method for implementation will be critical to the success of the policies.? Once again, creating these trainings will likely be time intensive and cannot be left until the brink of ratification.???

Educational Resources for Students to Understand Changes

The resources and information provided to the faculty and staff will differ (perhaps significantly) from the resources and information that will need to be provided to the students.? For example, the faculty and staff may have a passing, or more, familiarity with Title IX and Title IX proceedings, while it is necessary to assume that students have no familiarity and any person they may ask may have no experience with the changes associated with the Biden Amendments.??

Additionally, the information and resources provided to students do not have to deal with implementation plans or processes.? In fact, they should include simple and concise instructions and information intended to facilitate information gathering, the actual filings as well as commencement and navigation of the proceedings.? In other words, the information and resources created for the faculty and staff cannot simply be repurposed for students.? The two are independent and labor-intensive projects individually.??

Potential Accommodation Changes for Pregnant/Expectant Students and LGBTQ+ Students and Athletes

Policies and procedures are important and necessary, but there is also the potential need for changes to physical accommodations.? Given the increased protections asserted for pregnant or expectant students, the expansion of the protections provided under the definition of “sex discrimination” as well as the potential mandatory inclusion of transgender and/or non-binary athletes outside of sports that fit their technical biological classification, it seems impossible that there will not be substantial changes to physical facilities.

It’s impossible to say whether construction time would provide a passable excuse for non-compliance, but it seems unlikely.????

An Explanation of Procedural and Standard of Proof Changes

In addition to all the changes to the substantive protections under Title IX, there is a very interesting procedural change as well.? The standard of proof necessary to prove a violation of Title IX has traditionally been a “preponderance of the evidence.”? Commonly used in civil cases, a preponderance of the evidence is really the 51/49 standard meaning that you’ve met the burden of proof if the evidence shows that it is only slightly more likely that the conduct occurred than it did not.??

In contrast, in Colorado v. New Mexico, 467 U.S. 310 (1984), the Supreme Court held that a “clear and convincing evidence” standard means that “factual contentions were ‘highly probable’” which is a substantial higher burden than a preponderance of the evidence.

Why is this important?? Because any party asserting a claim under Title IX has to understand that the amount of evidence necessary to demonstrate a violation of the statute has increased.? And that simply showing that something is more likely than not to have occurred will not result in cognizable violation.? If that party believes, or has been told, that the standard is still a preponderance of the evidence, they may be very confused and/or angry at the result of the proceeding.? In short, there will be education required on this issue as well.?????????

A Fulsome Informal Resolution Program Capable of Dealing with Volume?

Finally, another significant change proposed in the Biden Amendments is the allowance for informal resolution prior to the filing of a formal complaint.? As a threshold matter, informal resolution is very similar to mediation.? In other words, a third party is involved in the dispute to try and facilitate a resolution that is acceptable, if not amicable, to the parties.??

Prior to 2020, informal resolution was not specifically allowed as a method of resolving Title IX disputes.? It was expected that all Title IX disputes would proceed through the formal investigation and hearing process.? That changed with the 2020 amendments to Title IX which expressly included informal resolution as a method for resolving Title IX disputes.? But the 2020 amendments still required a formal complaint to be filed before the dispute could proceed to informal resolution.? The assumption has long been that the filing of a formal complaint is a threshold that many students are not comfortable crossing.? Therefore, many Title IX complaints are never filed because students do not want their grievances to be on record.

The Biden Amendments propose eliminating the necessity for a formal complaint prior to moving to the informal resolution process.? This means that a student could bring a grievance to the Title IX office and request an informal resolution (mediation) of the dispute without being forced to officially document what occurred.??

It seems very likely that removing the filing of a formal complaint will eliminate a mental barrier that often prevents students from bringing grievances.? While this is unequivocally a good thing, it also means that Title IX departments may see a substantial uptick in the number of Title IX grievances that come in their door.? This will require additional time, bandwidth, resources and potentially headcount to deal with.??

Conclusion

The proposed Biden Amendments will fundamentally transform how Title IX impacts educational institutions.? While many of the proposed changes are unquestionably beneficial for a large population of students, education and implementation of these changes will be a monumental task.? Coupled with the fact that these changes will likely not go into effect in the middle of a school year, a substantial amount of planning and preparation simply needs to take place this summer.? Otherwise, a school could quickly find itself out of compliance and behind the proverbial eight-ball when these provisions go live in October.