Thoughts From the Public on Title IX

The Department of Education began five days of public hearings Monday, during which it expects to hear from 600 individuals about how it can improve Title IX enforcement, following a directive from President Biden to re-examine the controversial regulations put in place by the Trump administration.

As of last Friday, over 700 people had registered to comment for 600 confirmed slots in virtual hearings, during which the department will not respond to what is said. The department had also received 15,000 written comments, which will continue to be accepted throughout the duration of the hearings.

Commenters covered a range of issues related to Title IX of the Education Amendments of 1972 -- from the need for Title IX to address sexual violence prevention to the debate over transgender athletes competing on sports teams -- on the first day, with both supporters and opposers of the regulations released last May under former secretary Betsy DeVos represented among the speakers.

Those regulations made several notable changes to higher education Title IX practices, such as requiring institutions to allow live hearings and cross-examinations and limiting the scope of off-campus misconduct complaints colleges must act upon to those that occurred in locations used by officially recognized student organizations.

The latter change received pushback during the hearing from separate comments given by two former students, Delaney Davis and Sara Jane Ross, who graduated from the University of Texas at Austin. At colleges like UT Austin, many students live off campus, leaving them without protection from sexual misconduct, said Davis.

“Off-campus sexual misconduct is no less disruptive to a student’s education than misconduct that occurs on campus,” Davis said. “What is the point of even having Title IX if we are picking and choosing which survivors are worthy of protection?”

Ross said that if her Title IX claim had been processed under the new rule, it wouldn’t have been investigated, because she was raped off campus.

“It’s those off-campus places -- like apartments, parties, bars, sporting events and frat houses -- that are hot spots for abuse,” Ross said. “Allowing universities to ignore over 80 percent of conduct simply because it didn’t occur on campus is neglectful.”

Comments about the live hearing and cross-examination requirement were less uniform, with some speakers describing it as burdensome and creating a chilling effect while others argued it was essential to due process for the accused during investigations.

Especially for smaller institutions, the requirement has “proven to be way more resource-, time- and labor-intensive than we had anticipated,” said Amanda Bastiani, Title IX coordinator at the College of Saint Rose in Albany, N.Y. And it’s also meant that the college has seen fewer Title IX complaints.

“Under the new regs, we have already seen a notable decrease in students choosing to move forward with a formal complaint and investigation in order to avoid facing their alleged perpetrator in the live hearing,” Bastiani said. “This effect is not in the students’ best interest, nor is it in the college’s best interest to ensure a safe and healthy campus community.”

The effect isn’t only limited to the College of Saint Rose. Kathryn Nash, a partner at the law firm Lathrop GPM, has seen similar impacts at colleges and universities across the country that she works with on Title IX issues.

“We recommend that the department eliminate the live hearing requirement,” Nash said. “The hearings have created additional burdens for the parties, witnesses and institutions, and they aren’t necessary to ensure a fair process.”

Others commented that the live hearings were, in fact, necessary for a fair Title IX process. Benjamin North, a recent graduate of Case Western Reserve Law School, called it “the most important procedural protection” and explained that cross-examination allows both parties in an investigation to effectively advocate for themselves.

“Both respondents and complainants benefit from this procedure -- despite the emotional difficulties it does indeed present -- because the alternative is allowing the school to decide the case unilaterally with little input from the parties,” North said.

The procedure could use some reforms, suggested Jacob Sapp, deputy Title IX coordinator at Austin College. Though he said that cross-examination should be retained, he said it should be conducted by neutral decision maker, rather than by advisers to the complainant and the accused, as is the current practice.

A few commenters at the hearing addressed the controversy surrounding whether transgender women should be allowed to compete against cisgender women in athletics. Linnea Saltz, a graduate student and track and field athlete at Georgetown University, said it was unfair that a transgender woman was able to compete against her during her senior year at Southern Utah University.

“An athlete that had previously competed on the men’s team was now going to be racing against me and all of my teammates,” Saltz said. “Title IX was passed in order to create an equal and fair playing field for all, yet allowing these athletes to compete will discourage young women and expel them from their own sports.”

Two lawyers at the American Civil Liberties Union, Shayna Medley and Galen Sherwin, have said in the past that it isn't new for transgender athletes to compete in sports, adding, "there is no research supporting the claim that they maintain a competitive advantage."

"All athletes, cis and trans, compete with different advantages, but only some are questioned," Medley and Sherwin said.

Though it’s unclear how the Education Department will proceed on many of the issues discussed by commenters during the hearing, more clear is that it’s unlikely to limit the ability of transgender athletes to compete. Secretary of Education Miguel Cardona recently told ESPN that transgender students deserved to be a part of sports programs without harassment, like any other student.

“I recognize there’s a lot of concern around that issue, but what’s not tolerable is saying that some students cannot participate because of their gender,” Cardona said. “I do believe in local control. I do believe in state control, but we do have a responsibility to protect the civil rights of students. And if we feel the civil rights are being violated, we will act.”

And while many commenters offered suggestions for Title IX changes, others said things should remain as they currently are with the Trump-era changes, including Phillip Byler, a senior litigation counsel at Nesenoff & Miltenberg LLP who has represented college students accused of sexual misconduct.

“The current Title IX regulations aren’t broken and therefore don’t need to be fixed,” Byler said. “The current Title IX regulations, in mandating due process and fairness in Title IX sexual misconduct proceedings, were well formulated because they were based on well-considered decisional law.”

One commenter, who identified herself only as Karen, said the Office for Civil Rights should focus more on enforcing the current regulations, as she described her son’s rape case and subsequent OCR complaint that hasn’t been resolved after seven years.

“You are having this weeklong session for ideas on what needs to change,” she said. “I say new policies, rules and regulations won’t fix the problem -- enforcing the ones you have more likely will.”