Legal challenges to the Biden administration’s new Title IX regulations have been knocking out the regulations in state after state. As of now, every lawsuit challenging the regulations which has resulted in a ruling has yielded an order halting their implementation.
But here’s the rub: the losses by the Biden administration’s Department of Education do not affect every state. So in all likelihood, there will be a patchwork of different Title IX regulatory zones throughout the United States.
Thus far, the orders halting the regulations will affect a (current) total of 21 states: Alaska, Arkansas, Iowa, Idaho, Indiana, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, North Dakota, Nebraska, Ohio, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.
The decisions will almost certainly affect the implementation of the regulations in other states as well. However, at this time no court has issued a nationwide injunction. There are many complications, however, that will extend the ban on the new regulations to other institutions and other states beyond the existing 21.
The Current Regulations
The Title IX regulations, codified at 34 CFR Part 106, were revamped only four years ago by the Trump administration in order to provide greater due process protections – like the right to a live hearing with cross-examination – to students accused of sexual misconduct. Academic institutions almost universally opposed the Trump-era regulations. They went into effect on August 14, 2020 over howls of protest by campus administrators. Numerous lawsuits by a collection of states as well as nonprofit activist organizations challenged this previous incarnation of the regulations.
Those lawsuits all failed, with one notable exception: a case in the District of Massachusetts blocked a small part of the regulations. Judge William Young (a Reagan appointee) threw out one sub-section, 34 CFR 106.45(b)(6)(i), which would have required schools to disregard any statement made by a party or witness who refused to appear at live hearing for cross-examination. However, Judge Young upheld the remainder of the Trump-era regulations, which remained intact and in force.
On April 29 of this year, the Department of Education published the Biden administration’s revamped rules designed to roll back the 2020 regulations. The Department scheduled these new regulations to go into effect on August 1, 2024. The most controversial part of the new regulations has been the redefinition of harassment and discrimination on the basis of sex to include “gender identity.” However, the Biden administration has also sought to roll back due process rights of students, notably the right to see the evidence against them, to have a live hearing, and to cross-examine parties and witnesses.
Although contemporary debates will almost certainly continue to rage over what constitutes “gender identity,” the fact is that the vast majority of students at colleges and universities will continue to engage in sexual relationships, which, in this day and age, frequently lead to allegations of sexual misconduct. It is therefore the attack on due process rights that should be of most concern on campus among students, regardless of sexual orientation or gender identity.
What Will Happen Next?
In addition to the lower-court decisions enjoining the regulations from taking effect, there have been two appellate court decisions – in the Fifth and Sixth Circuits – upholding the lower court decisions. Both of these appellate court decisions have not only affirmed the lower courts’ decisions to block the Biden administration’s inclusion of gender identity in the rules (e.g., defining sexual harassment to include things like “misgendering” someone), but have refused to limit the injunctions to only certain parts of the rules.
In other words, the lower courts blocked the implementation of the entire body of new regulations, including the portions rolling back due process protections for accused students. If the new regulations were going to be blocked, the Biden administration had asked the courts to limit their orders to only those portions of the regulations that the court found problematic. This is called the doctrine of severability—where a court strikes out an offensive or unconstitutional provision of a statute or regulation but leaves other, valid portions intact. The courts declined to do so.
This means that, at least in the states that are directly affected by the various court orders, the due process protections of the 2020 regulations – including the right to a live hearing with cross-examination – will remain available to students. The rollback of due process rights in the new regulations are now, for the time being, blocked from implementation.
The question remains, however: What will happen in the remaining 29 states that are not covered by the current court orders?
Academic institutions have vehemently opposed due process rights for students accused of Title IX violations (notwithstanding the fact that due process rights generally benefit whomever is telling the truth—including victims). Therefore, at Allen Harris, we predict that most academic institutions will do whatever they can to undermine the hated Trump-era regulations and implement the Biden-era regulations. We also predict there will be litigation against schools that defy existing court orders forbidding (for now) the rollback of due process rights.
What will emerge is a patchwork of enforcement. Even in states not directly subject to the court orders referred to above, some individual schools may be affected. This is because some plaintiffs in the various court cases are organizations which have members throughout the United States and in any number of academic institutions.
Further complicating the implementation of the new regulations is the fact that many federal district and appellate courts have already ruled that cross-examination of some kind is essential to due process in the campus discipline setting—long before the existing wave of lawsuits challenging the Biden-administration’s Title IX rules. This includes the Sixth Circuit, which encompasses three existing states in which the Biden-era regulations have been knocked out, but also contains Michigan, which is not subject to any of the outstanding court orders (as of yet).
The state of Connecticut is another example but provides a slightly different scenario. The Connecticut state Supreme Court ruled in 2023 that cross-examination is necessary (among other factors) if campus disciplinary proceedings wish to qualify as “quasi-judicial.” Most colleges and universities will want to qualify under this standard, and to do so they will need to adopt more rigorous procedures than mandated under the Biden Title IX rules.
In sum, there is going to be a proliferation of different approaches to Title IX enforcement, policies, and procedures not only among different states but among different universities and colleges.
Consequences for Students
Students who find themselves embroiled in Title IX cases, whether as victims or as the accused, will therefore find it more daunting than ever to navigate campus tribunals.
The first step must always be to figure out what regulations and rules are being applied by the school. The next step is to find out whether the school is in direct violation of an outstanding order or the regulations.
Only then can a student begin to take all of the usual steps necessary to defend or prosecute a case: gathering and developing the evidence, preparing for investigative interviews and hearings, responding to the school’s investigation reports, and many other steps defined by the school, its Title IX policy, and federal regulations.
Unfortunately, the botched launch of the new Title IX regulations will make it more rather than less important to seek out experienced Title IX attorneys who can guide students through the process.
