ASBMB calls for changes to Title IX policy

The American Society for Biochemistry and Molecular Biology submitted formal comments on Friday to the U.S. Department of Education articulating concerns about a controversial Title IX policy that went into effect in August.

Title IX of the Education Amendments Act of 1972 “protects people from discrimination based on sex in education programs or activities that receive federal financial assistance.” Title IX applies to schools, local and state education agencies and other institutions that receive federal funding. Under Title IX, schools have a responsibility to take immediate action to eliminate sexual harassment or sexual violence, prevent its recurrence and address its effects.

The Trump administration in August significantly reduced universities’ obligation to investigate Title IX complaints and, according to critics, the policy has had a chilling effect on individuals reporting sexual misconduct.

Historically, the Department of Education has published only guidance documents regarding Title IX; this is the first enforceable policy. While a guidance is merely a general statement advising the public on how an agency interprets a law, a regulation or final rule officially binds the agency and the public to one interpretation of the law and, therefore, is enforceable by the agency.

The major provisions of the Title IX rule do the following:

1. Narrow the definition of sexual harassment;
2. Define when an institute of education is obligated to carry out a Title IX investigation — with the goal of prohibiting only intentional sex discrimination;
3. Require schools to provide supportive resources to all named parties, not just those who report experiencing sexual misconduct;
4. Require schools to administer hearings with cross-examinations of parties and witnesses involved; and
5. Allow institutions to choose which of two standards of evidence they require in all Title IX cases, one of which is significantly harder to prove.

According to then-U.S. Secretary of Education Betsy DeVos in 2020, this final rule “marks a new era in the storied history of Title IX in which the right to equal access to education required by law is truly protected for all students.”

Men’s rights advocates and defense lawyers lauded the rule, which they said protects the accused by implementing a narrower definition of harassment, which excludes many complaints, and requiring a higher standard of evidence, but gender equity groups and women’s rights advocates argue that the rule significantly weakens protections for survivors and actively discourages them from reporting sexual misconduct.

Earlier this year, President Joseph Biden signed two executive orders that were, according to the National Law Review, a direct response to the changes made under the Trump administration. Those executive orders, entitled “Guaranteeing an Education Environment Free from Discrimination on the Basis of Sex” and “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” both require a comprehensive review of the Department of Education’s Title IX regulations.

In early June, the Office for Civil Rights held a virtual public hearing to “seek input from students, parents, educators, school staff, administrators and other members of the public on what additional changes to the Title IX regulations...may be necessary to fulfill (the executive orders).” 

ASBMB urges the department to change the final Title IX rule

In their formal comments submitted to the Department of Education, the ASBMB Public Affairs Advisory Committee argues that three aspects of the Trump administration rule “hinder a just and equal legal process.”

First, the committee notes that the rule’s narrow definition of harassment is problematic. They wrote, “This final rule genuinely prohibits schools from investigating complaints of sexual harassment that do not fall within this limited definition.”

Second, the committee raises the concern that the rule’s cross-examination provision will “re-traumatize survivors of sexual assault and harassment, discourage the reporting of misconduct and give an unfair advantage to those who can hire lawyers.”

Third, the committee argues that allowing institutions to demand a higher standard of proof than has previously been applied will “dissuade survivors of sexual assault from coming forward and will likely depress the already-low institutional reporting rate.”

Read the full comments here.