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New organizational plan IX expands issues of sexual violence that colleges must investigate, and companies work to protect LGBT people

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US Education Secretary Miguel Cardona on Thursday unveiled a regulatory proposal for Title IX – the federal law banning sex discrimination in schools – that largely exposes the rule set by the Trump administration.

Key changes under the proposed rule include not requiring colleges to conduct a direct hearing to assess allegations of sexual violence and strengthening protections for transgender students.

Under the current rule, created by former Education Secretary Betsy DeVos, institutions must hold a hearing to assess reports of sexual misconduct. Under Cardona’s proposed new model, a college official can investigate and decide on a report of sexual violence.

This is known as the single investigator system, which has been attacked by civil liberties advocates, who argue that it does not provide due process.

Under the Cardona rule draft, colleges will generally need to use the “preponderance of evidence” criterion, which means a student can be judged if there is a greater than 50% chance that the claim is true. But colleges can choose to use a higher standard, the “clear and convincing” standard, if they do so in other similar disciplinary actions.

The plan will also expand the range of issues that colleges will be required to investigate. They will need to consider alleged misconduct involving college representatives that occurs off-campus or occurs on buildings owned or controlled by a student organization.

The draft regulation makes clear that discrimination against a student’s gender identity or sexual orientation can constitute a violation of Article 9. However, the Department of Education chose not to spell out some protections for student-athletes, specifically the criteria colleges use to determine whether they can participate in men’s or women’s sports.

A senior administration official said Thursday that the Department of Education will pursue a separate rule-making process for Title IX and athletics.

The Biden administration also promoted protections in the proposed rule for pregnant students and staff, saying it would boost requirements for reasonable adjustments, rest time and feeding space.

The administration’s release of the proposal Thursday — the 50th anniversary of former President Richard Nixon’s signing of Title IX into law — begins the process of putting a new rule into effect.

This begins with a public comment period. The Education Department must review and respond to the comments it receives in a final iteration of the rule. This may extend the timetable for finalizing the regulation. The DeVos draft rule attracted more than 120,000 comments, and nearly two years passed between the Trump administration’s publication of its draft rule and the entry into force of its regulations.

Title IX of the Education Amendments of 1972 has long been in place to protect college students from sex discrimination and has been applied in areas such as athletics.

But in the past eleven years, it has undergone a fundamental regulatory shift, beginning with the Obama administration’s issuance of the directive in 2011. It has directed the way colleges must investigate and hear sexual assault claims.

Advocates of sexual assault survivors owe Obama-era policies a new light on issues of sexual violence on campus, which continues to plague colleges across the country. A survey conducted by the Association of American Universities in 2020 found that 13% of students had experienced non-consensual sexual intercourse.

The Obama administration’s directives spurred political warfare. Due process activists have accused the Department of Education of coercing colleges to find accused students responsible for sexual violence by threatening to withdraw their federal funding.

Title IX litigation exploded, taking students to the courts to claim that their institutions screwed up sexual violence cases.

DeVos seized on civil liberties activists’ complaints and in 2017 overturned the Obama administration’s directive, saying the Department of Education would end “kangaroo courts” on colleges to rule on Title IX lawsuits.

The following year, DeVos released the regulatory proposal. It angered sexual violence survivor activists who said it would discourage reporting, because students would need to participate in the grueling live hearing in which the accused student is allowed to question the survivor through an advisor of their choice.

The rule also allowed colleges to ignore most off-campus sexual assaults and narrowed the definition of sexual harassment.

The final version of the DeVos rule went into effect in August 2020 and is largely unchanged from the draft.

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