The U.S. Department of Education’s (ED) proposed rulemaking (NPRM) pursuant to Title IX’s anti-sex discrimination provisions, published in the Federal Register on July 12 and on which comments are due by Monday, September 12, cover a great deal of ground. Rachel N. Morrison of the Ethics & Public Policy Center explored much of the NPRM’s scope in her FedSoc Blog post of July 22, specifically relating to the NPRM’s proposed expansion of the term “sex discrimination” to include sexual orientation, gender identity, and other areas, as well as the free speech implications of ED’s approach to defining “sex-based harassment.”

This post will examine the NPRM’s prospective impacts on due process in campus sex discrimination proceedings and look ahead to the prospects of litigation challenging the final Title IX rule as unlawful in light of the U.S. Supreme Court’s recent decision in West Virginia v. EPA.

“Reweighing” ED’s 2020 Due Process Provisions

In 2020, under the previous administration, ED issued regulations (2020 Rule) recognizing for the first time that sexual harassment, including sexual assault, is prohibited under Title IX. The 2020 Rule, still in effect, requires schools, colleges, and universities receiving federal financial assistance (recipients) to respond to reports of sexual harassment and sets out the procedures recipients must offer to both parties when a student or employee (complainant) accuses another student or employee (respondent) of sexual harassment.

Based on a wide-ranging “reweighing” of the relevant considerations at issue in the 2020 Rule, the current administration’s NPRM would make significant changes to the current due process requirements for recipients, generally in favor of institutional discretion. Here is a brief list of the most important changes the NPRM would make in this area (for a more comprehensive look, see the Defense of Freedom Institute’s side-by-side comparison here):

  • The 2022 NPRM would resurrect the “single-investigator model,” prohibited by the 2020 Rule, where a recipient can use the same person to take in and investigate complaints, conduct hearings, and adjudicate claims.

  • For Title IX sexual harassment proceedings in colleges and universities, the 2020 Rule requires recipients to hold a live hearing, at which both parties are permitted to use an advisor to cross-examine the other party and witnesses. The 2022 NPRM would allow but not require recipients to hold live hearings and permit such cross-examination, making it seem quite likely that recipients will reduce their procedural “burdens” by decreasing the procedural rights available to the parties. In cases where recipients do hold such hearings, they are required to prohibit “unclear” or “harassing” questions.

  • The 2020 Rule does not require elementary or secondary schools to hold a live hearing with cross-examination, but it does require such recipients to allow the parties (or their representatives) to ask questions of each other through the decision-maker. The 2022 NPRM eliminates these procedural requirements for evaluating credibility other than mandating a process that allows the decision-maker “to adequately assess the credibility of the parties and witnesses” only when credibility is in dispute.

  • The 2020 Rule requires all recipients to give parties access to evidence that is “directly related” to the sexual harassment allegations. The 2022 NPRM would only require colleges and universities to give parties an investigative report summarizing evidence they deem relevant and permit parties to request access to evidence based on this report—inherently limiting the universe of evidence parties would be permitted to probe. For elementary and secondary schools, the 2022 NPRM would only require recipients to give parties a written description of the evidence that the recipients consider to be relevant to the allegations—placing expansive power in the hands of the decisionmaker (who may also be the investigator).

  • The 2022 NPRM would not require elementary and secondary schools to offer an appeal from a responsibility finding to either party on certain specified bases, as guaranteed by the 2020 Rule. However, prior to such a responsibility finding, the 2022 NPRM would require all recipients to offer complainants the opportunity to appeal the dismissal of their complaints.

  • The 2020 Rule allows recipients to use either the preponderance of the evidence (i.e., more likely than not) or clear and convincing evidence standard of proof to adjudicate Title IX sexual harassment claims, so long as they use the same standard for all of these claims. The 2022 NPRM would permit recipients to use the clear and convincing standard of proof to adjudicate such claims only if they use that standard for all “comparable proceedings,” including those related to discrimination allegations. Otherwise, they must use the more-easily satisfied preponderance of the evidence standard. The 2022 NPRM would allow recipients to use a higher standard of proof for employee respondents than they use for student respondents.

West Virginia v. EPA’s application to the rulemaking

In its West Virginia v. EPA decision, the U.S. Supreme Court may have dealt a significant blow to ED’s NPRM. Released days before ED’s issuance of its proposed rulemaking, West Virginia is noticeably absent in ED’s otherwise exhaustive explanation of its proposal.

In West Virginia, the EPA attempted to use its rulemaking authority to force West Virginia to shift away from fossil fuel reliance to renewable energy sources. The Court held that the EPA’s unprecedented regulatory effort in a matter of vast economic and political significance had occurred without clear congressional authority, was contrary to congressional intent and the EPA’s previous interpretations of its own powers, and was, therefore, unlawful. According to the Court, the EPA’s efforts represented a fundamental shift from its own longstanding limited view of its authority pursuant to the Clean Air Act (CAA), relying on an obscure subsection of the CAA as its statutory authority to achieve its desired policy outcomes.

Title IX’s statutory protections were designed to ensure equal educational opportunities for America’s girls and women. Congress specifically permitted sex-segregated scholastic athletic teams and school programs to provide equal footing for girls and women in athletic sporting events, among other programs and activities. Like the EPA in West Virginia, ED now proposes a novel interpretation of its regulatory powers in tension with congressional intent regarding the meaning of “sex” when it enacted Title IX in 1972 and ED’s interpretation of its powers over the course of five decades.

The proposed change in Title IX’s statutory protections would have profound policy implications for schools, colleges, and universities: a school’s refusal to admit a biological male who identifies as female into the restrooms, locker rooms, and showers of biological females would violate Title IX. Likewise, a school’s failure to allow a biological male who identifies as female to participate in women’s athletic competitions would constitute “more than de minimis harm” to the student by the school, in violation of Title IX.

The West Virginia Court noted that Congress had repeatedly rejected legislative efforts to impose precisely the environmental policies the EPA sought to impose through its rulemaking. So, too, in the case of Title IX, parties who challenge ED’s rulemaking can point to the fact that Congress has repeatedly refused to enact the definition of “sex” and the accompanying statutory protections under Title IX (proposed most recently in the Equality Act) now contained in the NPRM.

After the West Virginia decision against the EPA’s assertion of its regulatory powers, the Biden administration may reasonably expect similar legal challenges to the expansion of the scope of Title IX to include gender identity in ED’s NPRM. As in West Virginia, the nature of the proposed rulemaking is profound, unprecedented, and implicates major questions that will likely form the basis for a challenge based on separation-of-powers principles.

Public comments on the proposed rule must be submitted by Monday, September 12. DFI maintains a website through which comments may be submitted directly to ED.


Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].