On Campus Podcast: Biden-Harris Title IX Proposed Rule Change

Darren Gaddis: From CITI Program, I’m Darren Gaddis and this is On Campus. Today, what are the new Title IX regulations from the Biden-Harris administration? What should we expect and what else do we need to know? I spoke with Amber Grove, Title IX Coordinator at Pennsylvania State University. As a reminder, this podcast is for educational purposes only. It is not intended to provide legal advice or guidance. You should consult your organization’s attorneys if you have questions or concerns about relevant laws and regulations discussed in this podcast. Additionally, the views expressed in this podcast are solely those of the guest and do not represent the views of their employer. Hi Amber. Thank you for joining me today.

Amber Grove: Hi, thanks so much for having me.

Darren Gaddis: To get us started today, could you tell me about your professional background?

Amber Grove: Sure. I am currently the Title IX Coordinator at Pennsylvania State University, which is a large public institution, and I’ve been there since November of 2022. Prior to that, I served as a director of Title IX and Clery compliance for a mid-size southern institution, UNCW, also public, and I was in that role for a little over six years. And before that, I had sort of fallen into Title IX unintentionally. I did some investigative work as a housing staff person, worked through conduct before I moved fully into a coordinator role. So I’ve been really ensconced in the Title IX field now for almost close to a decade between both of those experiences. Before that, I was a practicing attorney, so it gives me a unique blend of insight into this issue area.

Darren Gaddis: And for those who might be unfamiliar, what is the Biden-Harris anticipated Title IX rule?

Amber Grove: Sure. So we actually have a couple of things swirling around right now. In 2021, we had an initial document released, a guidance document indicating that the Biden-Harris administration intended to take a look at the regulations that had previously been enacted in 2020. And were intending to specifically look at regulations with an eye towards expanding the Title IX jurisdiction, particularly to include some protections related to sexual orientation and gender identity. So in 2022, they did in fact release a draft of regulations and it really went through a historic notice and comment period. It was the most comments that had been issued on a draft regulation. Previously, that distinction was held by 2020, but the Biden-Harris rules really looked to course correct what some saw as an overreach towards respondent process, but also to include protections for sexual orientation and gender identity under the definition of sex-based discrimination protection. Title VII really has seen that interpretation with Bostock and some other federal case law, but it had not yet been ensconced in Title IX. So that was one of the main markers of change in the Biden-Harris regulations or proposed regulations I should say.

There also was a really heavy focus on memorializing protections for pregnant and newly parenting students. We have one guidance document that was left intact by the prior administration that specifically requires all institutions of education that receive public funding to assist pregnant and newly parenting students. But this would really memorialize it more formally from a guidance document to regulatory language. The proposed publication date for the final regulations was anticipated to be May of 2023. That deadline has come and gone, and in the month of May, the Department of Education released a statement indicating that they would be delaying the release of those regulations until a projected date of October, 2023.

So we’re really waiting to see what the final version of the sexual misconduct, sex-based discrimination regulations look like. But while we’ve been waiting for that, another set of proposed regulations have been released by the Biden and Harris administration aiming towards greater equity in athletics, in looking to protect athletes who are transgender to ensure that they are able to participate adequately and have access to the educational program that is athletics. So that was released in the spring and the notice and comment period has actually come and gone for that. There is not yet a projected final date of publication for those regulations. Typically, that can take anywhere from 9 to 18 months, but who knows? It’s possible. Maybe they’ll try to roll it in October as well.

Darren Gaddis: In the field of Title IX, what are some widely viewed positive outlooks of the proposed Biden-Harris Title IX rule change from a practitioner standpoint?

Amber Grove: One of the things that I think is really notable is that it gives a little bit more flexibility back to institutions to decide how they’re going to set the grievance process. The 2020 regulations required a live hearing and also required a lot of delineation between people in roles to make that process happen. So your Title IX coordinator needed to be separate from your investigator, should be separate from your hearing panel or your hearing body that would be making the ultimate decision. Your appeal process should be separate. If you wanted to have an informal process, that person should be separate. That’s really onerous and tough for small institutions. So the proposed regulations I think allow for a little bit of flexibility in determining who can serve in those roles. Folks could maybe potentially serve in a couple of crossover roles because we know just at small institutions budgets are small and the amount of people that can do the work, it’s not quite as deep of a bench as you might have at a larger institution. So I think that’s one of the primary benefits.

The other thing that’s really striking, I think is the memorialization of that protection of sexual orientation and gender. Because we’re seeing that elsewhere already with Title VII cases, it was an expected extension, but also we know there’s a lot of pushback nationally right now related to LGBTQIA rights. So having this memorialized would really go a long way to ensuring that group of individuals has the protection that they need on college campuses and in the K-12 space as well.

Darren Gaddis: And on the flip side of that, from a practitioner standpoint, are there any negative or unintended consequences with the proposed Biden-Harris Title IX rule change?

Amber Grove: One of the things that I think could potentially be sticky is the pregnancy components. I think there’s a lot of benefit to memorializing that in regulations, particularly making sure that faculty, staff, and students have access to the same protections to ensure they’re able to continue with work or going to school even if they do have a child or experience childbirth related complications. But also if they choose to engage in an abortion, the regulations would require protection and accommodation for the entire range of folks that would access that type of care. So I want to pause there to say that’s a really positive component, but where I think it could be sticky and problematic is when we think about, and we look at the recent Supreme Court decision, the Hobbs decision, and the changes that we’re seeing nationally related to access to abortion care, the way that the proposed regulations were written would have institutions really gathering and retaining a significant amount of records about individuals who are pregnant.

And that kind of data could be problematic in places where folks are interested in potentially seeking out abortion care, but there might be conflict with the laws in the state where they are currently going to school. So that’s one component that I think could potentially be a little bit hard to navigate. I also sort of suspect that’s just something that’s holding up the release of the final regulation is really finding a way to balance ensuring that accommodations are given but not over-gathering data or burdening the parties that we’re really trying to help.

The other thing that I think could potentially be a little bit challenging to navigate is not necessarily because of the regulations, but because of the regulations and the intersection of case law and states. So I mentioned that flexibility that is in the regulations is really helpful to small institutions, and I do think that’s absolutely true, but in the proposed regulations, there is some language about though there’s flexibility, you still should have a hearing if credibility is [inaudible 00:10:51].When you take that phrase, plus what we’ve seen with some of the different circuit courts in the states, there may not actually be in some of the locations, as much flexibility as we would like or clarity. So I think having some of that language be cleaned up a bit or clarified and the final regulations would really be quite helpful.

Then I will just give a nod to those athletic regulations as well. I think that there is a lot potential gray area and edicts that are in there for protecting transgender student fleet participation. I think some greater clarity and guidance and guideposts would be really helpful to ensure that’s equitably applied across all institutions nationally.

Darren Gaddis: And with this knowledge, how do practitioners in the field broadly feel about the proposed Biden-Harris Title IX rule change?

Amber Grove: Overall, I think there is a feeling that they are more moderate, I think in an attempt to get back a little bit towards the middle. I think that’s been one of the criticisms of Title IX over time is that the pendulum swings so hard to one side or the other that most practitioners have really recognized that there is a way for balance to occur and that it would be in everyone’s best interest for us to be able to find that balance. And so I do think practitioners overarchingly appreciate some of the balance that you do see in these proposed regulations.

Darren Gaddis: And what is the anticipated timeline for the proposed Biden-Harris Title IX rule change?

Amber Grove: We’re anticipating seeing the final regulations be publicized in October, so that would be in the middle of a fall semester for institutions. I think initially folks were excited about or prepared for the May release because that allows potentially some opportunity to get policies in place before our August start of school, but now we’re looking at a fall drop date for that. It’s not clear whether or not they will give a sufficient time or the entire rest of the academic year to create policies and procedures and roll them out, or if they will require that adjustments be made by January. That would be the tightest timeline we’ve ever seen for implementing new regulations. In the 2020 release, we had the drop in April and had to have things done by August, and that was in the nascent stages of COVID-19. And at that point, practitioners were like, “Whoa, that’s really fast and unprecedented.” So I’m sort of anticipating that they’re not going to say in October, you’ve got to have new policies by January.

That being said, that’s not impossible. And I think the other thing to note is that these don’t represent the hard shift that the 2020 regulations represented. It shouldn’t require quite as big of an overhaul. So even if we do see a truncated timeline, I think it’ll be tough, but I think it’ll be manageable if that’s the direction we go in. So we’re really looking at, to summarize, new policies and procedures on campus either by January of 2024 or August of 2024.

Darren Gaddis: What else should we know about the proposed Biden-Harris Title IX rule change?

Amber Grove: I think the other thing to always be cognizant of is that we have a lot of moving parts that are shaking loose in state courts, I’ve mentioned that briefly, and some of the federal district courts, so I know it’s not directly related to the rule. But I think it’s still really impactful as practitioners and we need to make sure we really keep our eye on the ball there because regulations always establish a compliance floor, and so we are able to see and do see in other jurisdictions, increased due process requirements, hearing requirements. So for example, I think we’re anticipating in the third circuit that even if we have flexibility about hearings, we’ve seen some court decisions that really encourage the utilization of hearings regardless of whether credibility is at issue. So I think what’s really important to keep our eye on those extraneous components.

I think the other thing that is also really important to be mindful of and to watch is that we’re starting to see some activity in Congress, increased activity around the higher education sphere. Hopefully with these regulations, if they do come down in time for October, hopefully those will sort of supersede some of the space and give stability because I think that’s what folks are sort of desperately craving at this point. Not even just the practitioners. I think we’re used to bouncing back and forth, but our students, faculty and staff I think would really appreciate having some equilibrium in this space so we can start doing or keep doing and push forward some of the really good work we’re trying to do on some of the prevention side of the house and the support side of the house.

Darren Gaddis: Amber, thank you for joining me today.

Amber Grove: Thanks so much for having me, Darren. It’s a pleasure.

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