June 29, 2022
Last week, the U.S. Department of Education published its long-awaited regulatory proposal on Title IX, the federal law that bans sex-based discrimination in schools that receive federal funding.
While the law once was best known for attempting to ensure equity in athletics, over the last 11 years it has morphed into one of the primary tools for defending against campus sexual violence.
The Biden administration’s draft rule outlines the steps colleges and K-12 schools would need to follow to investigate and possibly punish sexual misconduct. It would replace one issued by former Education Secretary Betsy DeVos that took effect in August 2020. DeVos said she wanted to preserve due process in Title IX proceedings, and her rule created a courtroom-style setting for evaluating reports of sexual violence.
The department’s draft rule contains some DeVos-era elements, but would largely dismantle the current regulation. It would give colleges flexibility to decide whether to hold a live hearing to assess sexual assault claims rather have the type of hearing be mandated, for instance.
Below, we outline five key provisions of the department’s plan that colleges will likely need to understand. The draft rule will likely not come into force for many months, as the department must collect public feedback during a 60-day comment period and respond to the comments in the regulation’s final iteration.