Proposed Title IX Regulations Roll Back Trump-Era Policies, Raising Concerns Among Higher Education Experts

The U.S. Department of Education released proposed changes to Title IX regulations on June 23 in celebration of the policy’s 50th anniversary, drawing mixed reviews from higher education experts.

Enacted in 1972, Title IX prohibits discrimination on the basis of 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 over a year of listening sessions and meetings with key stakeholders, advocates, students, and parents.

The amendments seek to clarify and bolster protections for survivors that were “weakened” during the Trump administration, according to a department press release.

“The proposed regulations will advance Title IX’s goal of ensuring that no person experiences sex discrimination, sex-based harassment, or sexual violence in education,” the press release reads.

The amendments proposed June 23 would expand the existing definition of sex-based harrassment to include “unwelcome sex-based conduct” that limits an individual’s education, as well as discrimination based on sex stereotypes, gender identity, and pregnancy. The proposal would also require schools to act “promptly and effectively” in response to complaints about sex descrimination.

The proposal will remain open for public comment for 60 days.

The modifications address widespread opposition from 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 the full spectrum of sexual harassment or sexual misconduct that can occur,” said Shatz. “I think the definition under the existing regulations of what is Title IX sexual harassment is too narrow.”

Title IX guidelines shifted under the Trump administration to narrow the definition of sexual misconduct to “unwelcome conduct that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to a school’s educational program or activity.” Under the Obama administration, sexual harassment encompassed all “unwelcome conduct of a sexual nature,” including “requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”

Title IX attorney Andrew T. Miltenberg, however, expressed concern that schools will have insufficient resources to resolve cases of gender discrimination if Title IX complaints “significantly increase” in number under the broader definition.

“In turn, the proposed Title IX regulations allow educational institutions greater latitude in constructing 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 for the sake of streamlined resolutions in order to meet the increased demand for resources under the broader definition of sex-based harassment.”

The University released its own proposed changes to the school’s discrimination and sexual harassment policies in April, altering its definition of consent to “active, mutual agreement.” Harvard affiliates will be able to provide feedback on these amendments until the end of September.

Harvard will consider the department’s Title IX amendments in tandem with the University’s shifting policies, according to University spokesperson Jason A. Newton.

“The University is reviewing the proposed changes to consider implications with our current and proposed policies,” Newton wrote in an emailed statement.

Miltenberg, who has been involved with around 15 Title IX cases at Harvard, characterized the current Title IX procedures at the University as “intentionally opaque” and “exceedingly slow.” Harvard allows “hearsay, gossip, and innuendo” during trials, according to Miltenberg, which disadvantages the accused.

“I consider Harvard’s Title IX policies and procedures to already lack reasonable due process protections for an accused,” Miltenberg wrote. “The proposed regulations and, what I suspect to be Harvard’s application of those changes, will only serve to further erode the ability of an accused to fairly and equitably defend themselves from allegations that are often life altering.”

Newton declined to comment on Miltenberg’s criticism.

Harvard Law School professor emeritus Elizabeth Bartholet raised similar concerns that the proposal would diminish the rights of the accused.

“I recognize there are some proposed improvements including in the definition of sexual harassment and sexual discrimination,” Bartholet wrote in an email. “However, I am concerned with the reduction of fair process for those accused, including the elimination of a live hearing requirement, and I am concerned with the proposed standard of proof (generally encouraging a preponderance standard rather than a clear and convincing evidence standard).”

William M. Sutton ’23, an organizer for anti-sexual assault advocacy organization Our Harvard Can Do Better, wrote in an email that the group considers the proposal a “significant improvement” from Trump-era Title IX policies. But the organization remains critical of Harvard’s efforts to end sexual violence on campus, according to Sutton.

“Even at their best, Title IX rules provide only some form of recourse— they do not prevent sexual violence, and rarely do they help survivors fully heal from it,” Sutton wrote. “Harvard can and must invest heavily in the prevention of sexual violence in our community.”

“It is unconscionable that the richest university in the world is not mobilizing all of its resources to end the crisis of sexual violence in our community,” he added.

—Staff writer Anjeli R. Macaranas can be reached at anjeli.macaranas@thecrimson.com.

—Staff writer Mayesha R. Soshi can be reached at mayesha.soshi@thecrimson.com.