Efforts to block the implementation of controversial changes to Title IX rules before the new school year began failed last week when a federal judge refused to take action against the Department of Education.

U.S. District Judge Carl. J. Nichols decided on Aug. 12 not to issue the injunction 17 states collectively asked for, thus clearing the way for the changes to be made to the way federally funded schools and universities handle sexual assault cases. The new Title IX rules took effect two days later.

Critics of the changes have argued the new rules go too far in extending protections to the accused at the cost of victims. Among the changes are the redefining of what constitutes sexual harassment – in stricter terms than what’s used in employment law, according to the National Law Review – and giving the accused the right to a live hearing during which the accused can cross-examine witnesses and challenge evidence.

Title IX Overview

Title IX refers to the section of the Education Amendments of 1972 that protects students from discrimination based on sex in education programs or activities funded by the federal government. It says:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

New Administration Led to New Title IX Rules

Shortly after her appointment in 2017, Secretary of Education Betsy DeVos set about making changes to the rules and regulations regarding Title IX and its application in sexual harassment, abuse, and assault cases. The first change was to rescind a letter of guidance issued by President Barack Obama’s administration to the education department that said “college officials should use a ‘preponderance of the evidence’ standard to determine guilt in sexual misconduct complaints, basing decisions on the most convincing evidence presented,” according to Inside Higher Ed.

The letter and its directives led to numerous lawsuits filed “by mostly male students” who had been accused of sexual misconduct and claimed their rights to due process were compromised by the Title IX rules, the Inside Higher Ed report says.

One of the key changes in the new Title IX rules, which were formally unveiled on May 6, is that schools will now be permitted to choose between the “preponderance of evidence” standard in handling sexual harassment and assault allegations and a “clear and convincing standard, which sets a higher burden of proof,” Inside Higher Ed reported.

Another hotly debated change to the Title IX rules is the new definition of sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”

Judge’s Ruling and Ongoing Challenges

Attorneys general from 17 states – including Pennsylvania, New Jersey and California – petitioned the court for an injunction that would have held up the changes to Title IX, but Judge Nichols refused. In his 31-page written opinion, he said the states they failed to offer convincing evidence anyone would be harmed by allowing the changes to go into effect, Courthouse News reported.

The states argued unsuccessfully that schools wouldn’t have enough time – less than four months for most between the announcement of the changes and the state of the new school year – to revise their policies in keeping with the new Title IX rules, among other things.

The request for an injunction was only part of the states’ legal challenge against the DeVos administration’s Title IX changes. The group of attorneys general are seeking to overturn the changes and the bulk of their case is ongoing.

This article is not legal advice. It is presented
for informational purposes only.