Under the federal government’s proposed Title IX regulations released Thursday on the 50th anniversary of the law, athletic department coaches and administrators would still be prohibited in most cases from removing an athlete accused of misconduct. sex from a sports team while an investigation is ongoing.
While the U.S. Department of Education has proposed repealing several of the Title IX provisions enacted in 2020 by the Trump administration — including the level of proof needed to determine that a violation has occurred — it maintains in places the provision that prevents disciplinary action against students until an investigation has determined they were at fault.
The long-awaited proposed regulations cover a wide range of issues relating to how schools enforce the Title IX Gender Equality Act in responding to allegations of sexual harassment, assault and discrimination. For the first time, the rules would formally protect LGBTQ students under Title IX, stating that “preventing someone from participating in school programs and activities consistent with their gender identity would cause harm in violation of Title IX,” depending on the department.
However, the department delayed proposed rules regarding the eligibility of transgender athletes in the sport, saying it would engage in separate regulation “to determine if and how the department should amend Title IX regulations to address to the eligibility of students to participate in a particular men’s or women’s track and field team.”
On a call with reporters, a senior education department official said there was no specific timeline for these proposals, but noted that “we know these issues are urgent and very important. to solve”.
US Department of Education Secretary Miguel Cardona, who has often spoken about the rights of transgender students and athletes, told reporters on Thursday that protecting LGBTQ students was an important principle of the proposed regulations.
“Together, we must seize this opportunity to better protect LGBTQ youth who face bullying and harassment, experience higher rates of anxiety, depression and suicide, and too often grow up feeling like they don’t belong,” he said. “You belong in our schools. You have laudable dreams and incredible talents. You deserve the opportunity to shine authentically and unapologetically. The Biden-Harris administration has your back.”
Athlete Ally’s Director of Policy and Programs, Anne Lieberman, told ESPN on Thursday: “I want to trust and believe that the Department of Education will do absolutely everything in their power to deliver on the promise of the title. IX on the occasion of the 50th anniversary and protect all students fully and fairly…. I also want to trust and believe that the administration knows the incredible damage, violence and damage that will be done to children if they are not unable to participate in sports with their friends.”
In 2021, the U.S. Department of Education sought public comment on changing Title IX regulations, in response to criticism that former Secretary Betsy DeVos’ department had eroded survivor protections by adding multiple rules designed to benefit students accused of sexual misconduct. Cardona said Thursday the department listened “to stakeholders to learn where the 2020 regulations went wrong and what they got right.”
Some of the proposed reductions or changes in the proposed regulations for colleges:
• Expand the definition of gender-based harassment and discrimination. Current regulations only prohibit unwelcome conduct based on sex if it is “so serious, pervasive and objectively offensive that it effectively deprives a person of equal access to the recipient’s education program or activity. “.
• Include reports of off-campus incidents within a school’s Title IX jurisdiction; currently they are mostly excluded.
• Allow, but not require, a live hearing in which those who report incidents and those charged can be cross-examined, and allow these hearings to take place in a virtual setting where the parties are not in close proximity direct. Currently, live hearings are required in most cases.
• Require schools to use a standard of proof based on the preponderance of the evidence — meaning there is more than a 50% chance the inappropriate conduct has occurred — unless the school uses the highest clear and convincing standard of proof in “all other cases”. comparable procedures. »
The proposed rules apply to cases involving athletes and student non-athletes, although according to a 2018 survey by ESPN, college athletes are more likely to be charged in Title IX sexual assault claims.
The rule affecting the ability of coaches to remove athletes from teams applies not only to athletics but to any type of disciplinary action, which a school “shall not impose…unless it determines that ‘there was sex discrimination’.
In an interview with ESPN earlier this year, Cardona said coaches have an “important role” when an athlete is accused of sexual misconduct.
“But I also know that the process has to be followed in order to really determine whether the allegations that have been made actually happened,” Cardona said at the time. “There’s no easy answer to that. I believe coaches should be part of that process, but the process of determining the outcome of the case is really important not just for the student, but for the whole community. school community.
While the department can offer supports to students and others who report incidents and can take steps to ensure their safety while the investigation is ongoing, maintaining the rule against disciplinary action “solidifies the principle of due process” for the accused, a higher education department official said Thursday.
Survivor attorney Brenda Tracy, whose organization Set the Expectation educates athletes and other students about preventing sexual assault, said she was disappointed with the proposal and the message it sends when an athlete reports in a sexual assault incident is allowed to continue playing and representing the school. .
“The discussion around violent athletes seems to reside only in a sports bubble and those outside the bubble either don’t understand, don’t want to understand or don’t care,” she said. “If people understood the power of sport on our college campuses and how many decisions are made with the lens of protecting athletes and sport programs, they would approach this issue differently.”
The Ministry of Education will make a final decision on the proposals after a 60-day public comment period.
ESPN’s Katie Barnes and the AP contributed to this report.