Changing Higher Ed Podcast 113 with Host Dr. Drumm McNaughton and Guest Tom Netting – Washington Update: Proposed Changes to Title IX and Protecting Vulnerable Students
In our last Washington Update podcast with Tom Netting, we discussed the outcomes of Neg Reg 2022 and the 16 complex issue papers that were brought to the table, including those that failed to reach a unanimous consensus. At the time, we were eagerly anticipating the release of proposed rule changes to Title IX. In this episode, Tom Netting returns to the show for an intensive discussion about the proposed amendments to Title IX as well as the recently released notice of proposed rulemaking (NPRM) relating to several key issues left over from this year’s Neg Reg process, including borrower defense to repayment (BDR) and public service loan forgiveness (PLSF).
Collectively, the many changes proposed by the Department of Education over the last 4 weeks mark a definitive departure from the hallmark efforts of DeVos and President Trump to weaken student protections. With President Biden’s release of these proposals, we are seeing a return to the values of the Obama administration.
The Proposed Changes to Title IX
As Title IX hits its 50th anniversary, the Biden administration has proposed sweeping changes focused on fortifying the protections of students who may face violations of their civil rights. The protections of victims of sexual harassment, assault, and sex-based discrimination now include members of the LGBTQI+ community, who face a disproportionate amount of harassment, assault, and discrimination.
Once finalized, these changes may undo much of the work done by Secretary DeVos during the Trump administration, which aggressively rolled back many of the Obama-era Title IX protections, making it harder for victims to come forward while offering more resources and protections to the accused.
Under DeVos, the interpretation of the Clery Act – which requires all schools that receive federal funding to track and disclose data about crimes reported on campus – vastly limited the scope of campus geography. This eliminated schools’ responsibility to report, investigate, and publish any incidents of crime that occurred in fraternity or sorority houses, students’ cars, off-campus events and housing, and other tertiary campus facilities. This arguably endangered students in places where many sex-based crimes are known to occur, such as at frat parties and social events in non-administrative campus facilities.
Expanding the Definition of Sexual Harassment in Higher Education
DeVos also narrowed the definition of sexual harassment under Title IX by deferring to the Supreme Court’s definition, explicitly seeking “a reduction in the number of Title IX investigations.” Proponents of the new proposed changes argue that they repair the damage created by DeVos, which discouraged victims from coming forward and disempowered those who did.
Under the Trump administration, the definition of sexual harassment was narrowly defined as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature,” or, in other words, severe misconduct that directly and detrimentally interferes with a student’s education. Proposed rule changes expand that definition to include all forms of harassment, abuse, discrimination, and sexual assault.
The major proposed changes to Title IX of the Education Act focus largely on protecting the civil rights of students who may be especially vulnerable, including alleged victims of sexual harassment and abuse.
Some of the major revisions include:
- Changes in procedural and investigative requirements, including eliminating the mandate for live hearings.
- Expansion of the definition of sexual harassment to include all forms of sex-based harassment, assault, and discrimination.
- In cases of sex-based crimes, reduction of the physical evidence that must be shared with the accused to a simple summary.
- Inclusion of all LGBTQI+ individuals in the protections afforded by Title IX.
- Reinterpretation of the Clery Act to include fraternity and sorority houses and other facilities in the definition of crimes committed “on campus.”
No More Live Hearings
Under the DeVos-era rules, sexual misconduct cases were required to be resolved in a courtroom-style live hearing that included cross-examination. Victims’ rights advocates criticized this, saying that this model discouraged reporting of sexual assault by victims. One of the major changes in the proposed regulations includes doing away with this – the choice would be left to the institution.
Cross-examinations of victims can be notoriously aggressive and re-traumatizing for victims. Advocates of this proposal believe the change would lead to an increase in reporting of sex-based crimes, one that is more accurate.
Institutions are currently only required to investigate incidents that occur within specific university-owned on-campus buildings and within the scope of their programs and activities. The new proposal would implore institutions to protect students from hostile environments both on and off campus. The details remain to be clarified and will likely be fought over in the courts, but Netting indicates that facilities currently considered off-campus would be included in the campus geography, especially fraternity houses, sorority houses, school-owned off-campus housing, and certain other buildings and facilities.
This makes it more in line with the intent behind The Clery Act, named after a student victim who was assaulted and killed outside of campus bounds. Because the crime occurred inside a car, the school was not responsible for investigating it.
The new proposals would keep the intention of the Act intact by including fraternity and sorority houses, off-campus housing owned by the institution, and certain other facilities. Whether crimes committed in cars would be covered is anyone’s guess.
Assuming these proposals are finalized in their current form, schools will have the option to facilitate informal resolutions as an alternative to mandating formal proceedings required by the DeVos regulations. This would loosen up the requirements for schools, and theoretically, not having to face the stress of a formal trial may encourage more victims to come forward. However, victims’ advocacy groups warn that informal resolutions may mask the true number of reported crimes that happen on campus but do not go through formal procedures.
Reactions and Criticism
Not surprisingly, reactions to the proposed changes are, Netting says, largely split along party lines. That’s because the changes would largely rebuild and fortify protections that existed during the Obama era, which the Trump administration had stripped down, with some additions. With the Supreme Court’s ruling to overturn Roe v. Wade the very day after these proposed changes were published, conservative critics say these changes attempt to smuggle abortion rights into Title IX. Proponents of the proposed changes applaud the strengthening of Title IX’s essential intention to protect students. Victim’s rights groups, advocates, and even many schools argue that the revisions are needed to protect students whose civil rights had been restricted or denied under the previous administration.
Conservatives argue that accused parties in cases of sexual harassment and assault are being stripped of their rights to due process, and that the new changes favor alleged victims, or accusers, at the expense of the accused, or alleged attackers.
Regulation, says Netting, is where presidents often try to make their mark. The long-awaited changes to Title IX are a signal that the political pendulum is swinging back in a more liberal direction. Netting indicates that the proposed changes will face strong legal battles in the courts.
But Wait – There’s More: Borrower Defense to Repayment, PSLF, and Other Proposed Changes
Title IX isn’t the only topic of heated conversation. Even more recently, proposed changes from the Department were issued regarding several items left over from the Neg Reg process regarding student loan debt. With surging tuition costs and $1.7 trillion in national student loan debt already out there, making higher education more affordable and relieving already-indebted students is a major priority for the Biden administration.
The Department of Education has approved over $8 billion in funds to make some of these indebted students whole, particularly those that enlisted in schools based on false or misrepresented information and expectations, with more expected to come.
Proposed Regulatory Changes Intended to Protect Student Borrowers
If a student enrolls at a school based on false pretenses, egregious marketing, and recruitment practices, or misrepresented data, they may seek restitution under the new guidelines. The notice of proposed rulemaking (NPRM) changes, published July 6 by the Department, significantly clarifies what constitutes misconduct on the part of institutions.
The proposed rules also introduce a new category called fraud to further clarify and expand the types of actions prohibited among institutions. In the case of for-profit schools, some of which may have already shuttered their doors, the institutions as well as the owners, prior owners, and other major shareholders of those institutions can now be held accountable if the school’s practices are found to meet the criteria.
Netting notes that these changes will have vast implications for all institutions of higher education once finalized, including many that are consistently ranked among the top schools in the country. Just this month, the U.S. News & World Report removed 10 reputable colleges from its influential rankings for 2022, including Columbia and Villanova, alleging that those school has misreported themselves on various datapoints. The nature and details of the misreported data were included in a U.S. News Rankings Update and published on July 7.
Collectively, all changes announced in the July 7 NPRM are intended to protect and benefit prospective students who may choose to attend a particular college based on falsified or misreported information. According to Netting, if students use that information to “determine their desire to attend that institution, that constitutes a misrepresentation or fraud on behalf of the institution.” A change like this could allow students who believe they were defrauded to sue a school such as Columbia for fraud and have their entire student debt burden set aside.
Implementing the Title IX Changes
Unlike the Neg Reg issues related to Title IV, revisions to Title IX do not have to go through the Neg Reg process and are not subject to the Master Calendar. According to the Calendar, changes to BDR and other issue papers from Neg Reg must be published in their final form by November 1 to go into effect on July 1 of the following year. Netting is confident that the proposed changes regarding student loan forgiveness will be completed by that time.
Public Comment on Title IX
No other piece of federal regulation has been as controversial or as important as Title IX. All parties are watching closely as the Department seeks to make changes. Since its inception, Title IX has received more public comment than any other legislation regarding students in higher education. These proposed changes are expected to receive over 100,000 public comments.
The new Title IX regulations will be open to public comment for a period of 30 days, which may be extended. The Department will take comments into account and make changes as they see fit before final publication. Normally, implementation does not begin immediately, but it can. Netting and other experts will be watching closely as the public weighs in.
The issue papers regarding BDR and PSLF failed to reach a unanimous consensus during Neg Reg due to strong opposition, particularly from for-profit institutions, who will have their say during the comment period. Once finalized by the Department, they will be published in the Federal Register.
Negotiated Rulemaking Moving Forward
With so many other remaining issues from Neg Reg in need of resolution, and with the Biden administration clearly committed to making its mark on higher education, more NPRMs will likely be coming soon. As the Department moves in the direction of providing greater support and stronger protections for students, we can expect big changes from all institutions of higher education as they work to catch up with the proposed standards and expectations of accountability that are already on the table.