Research

Presidential Policy Preview:

Expectations for Title IX Implementation Under Either a Harris Administration or 2nd Trump Administration

posted 10/25/24

Written By: Emma Tolliver, Leila Chiddick, Shreyashi Sharma, & Georgia Lavery Van Parijs

CW: sexual violence and harassment

DISCLAIMER: Survivors + Allies does not endorse and is not affiliated with either presidential candidates. The following article intends to inform its readers about the Title IX changes under each presidential administration with the interests of survivors at the forefront. 

As the 2024 United States presidential election looms over the nation, the implications for Title IX and college student survivors of sexual violence remains uncertain. Title IX is not commonly thought of as an issue on the ballot, but how it can be implemented is heavily affected by who is in office. 

Title IX is a federal law that prohibits discrimination on the basis of sex in educational institutions and programs that receive federal funding; this includes all public universities, such as the University of California campuses. It was passed as part of the Education Amendments of 1972, which amended the Civil Rights Act. Title IX itself is only one line long and reads: “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.” However, Title IX is enforced by the Department of Education, which can enforce specific guidelines on the implementation of Title IX. Because the Department of Education is a cabinet-level department and the Secretary of the Department of Education is selected by the president, Title IX regulations are heavily impacted by the administration’s Secretary of the Department of Education and, more broadly, by the president of the administration. 

Below is an evaluation of what we project to be Title IX policy under a second Trump administration or a Harris administration. These projections were developed by analyzing policy from Donald Trump’s 2016-2020 term as president and Joe Biden’s 2020-2024 term as president, in which Kamala Harris served as the Biden Administration’s Vice President. These predictions were generated under the assumption that Kamala Harris would continue Biden administration policies regarding Title IX, and that Donald Trump would implement policies regarding Title IX that are similar or the same to the policies implemented during his first term. 

As Title IX changes will affect survivors of sexual violence on college campuses across the nation, we find it imperative that we anticipate what changes may occur to Title IX policy and how students, faculty, staff, and universities can best prepare to protect students in light of these changes. 

Projected Title IX Policy Under Either a Harris or 2nd Trump Administration 

Broadly, the major differences in Title IX policy that we anticipate between the administrations fall into one of the following categories: the definition of sexual harassment, whether institutions have purview over incidents that occurred off campus, the single investigator model, retaliation rules, protections for pregnant and breastfeeding students, and informal resolution. 

Definition of Sexual Harassment 

What did Biden Administration regulations do differently? 

The Biden Administration changed the sexual harassment definition to a lower standard of “sufficiently severe or pervasive.” (ACE, 2024). The new definition is much broader than the preceding definition from the Trump administration (NY Times, 2024). 

The Biden Administration updated the sexual harassment definition to extend Title IX’s protections to father jurisdictions and more student populations (NY Times, 2024; ACE, 2024). Now, Title IX extends to off campus and international jurisdictions, along with various student populations such as pregnant and parent students and LGBTQI+ students (ACE, 2024; National Women’s Law Center, 2024). 

It is likely that the Harris administration will continue to uphold the same broader definition if they remain in the Executive Office for another four years. 

Trump Administration Policies 

The Trump administration implemented a narrow definition of sexual harassment, requiring it to be “severe, pervasive, and objectively offensive” (TIME, 2020). The requirement of sexual harassment being “objectively offensive” is nearly impossible to prove and it aligns with the common social narrative that what perpetrators have done is “not that bad” according to TIME article. Additionally, due to the usage of “and” in the requirement, all three requirements must be met for conduct to be considered sexual harassment. 

The Trump Administration regulations were  intentionally updated to be unclear and prevent survivors from understanding their rights (TIME, 2020). Without being able to understand the regulations, survivors face higher barriers to receiving support. 

From Agenda 47, which is Donald Trump’s official 2024 campaign platform, he commits to “revers[ing] Biden’s radical rewrite of Title IX Education Regulations.”

Jurisdiction of Where Harassment Occurred

The Biden-Harris administration updated the narrow jurisdiction implemented under the Trump administration. The Biden-Harris administration nullified the Trump administration requirement that a school’s investigative jurisdiction was limited to incidents that occurred on campus or in school programming; schools can investigate incidents that occur off-campus so long as an incident will contribute to a hostile educational environment (New York Times, 2024). 

The Trump administration implemented Title IX regulations that limited the jurisdictions protected by Title IX; only sexual assault that had taken place on a university’s campus or “in conjunction with an education program or activity” constituted sexual assault within the jurisdiction of a Title IX office (TIME, 2020). 

Thus, study abroad programs are not under the protection of Title IX and it was up to the discretion of the university whether students taking classes online, attending events off-campus, or attending research sites off-campus are protected (TIME, 2020). According to RAINN, only 8% of sexual assaults take place on school property, which means these regulations give universities permission to ignore the vast majority of sexual assault claims (TIME, 2020).

Implementation of the Single Investigator Model and Live Cross-Examinations

The Biden Administration made live cross-examinations optional rather than mandatory. Additional procedures have been put in place “through which a decision maker [can] assess a party or witness’s credibility, including posing questions from the opposing party” (NY Times, 2024). This is to prevent questioning that is too invasive or goes beyond the facts of the case.

Therefore, the Biden Administration uses the Single-Investigator Model, which allows one person to “[investigate], [adjudicate], and [issue] any sanctions against” a perpetrator (Inside Higher Ed, 2024). 

Although it has its faults, because only one person is reviewing the entire case and their bias can impair the findings, it is much less invasive than a live hearing with the perpetrator present (ATIXA, 2024). Having a single investigator model allows universities to be more flexible while better protecting survivors and keeping the investigation process neutral and fair (ACE, 2024). 

Furthermore, the change in regulations allow for the use of a ‘preponderance of evidence’ standard which means “to prove that something is more likely than not” (NY Times, 2024; Burden of Proof Govt. Document). The ‘preponderance of evidence’ standard is the lowest standard of proof, lowering the amount of evidence needed to justify a legal conviction (HG.Org). 

Under the Trump Administration survivors were required to be cross-examined in a live hearing face-to-face with their perpetrator (Washington Post, 2020). This investigator model can be incredibly re-traumatizing for survivors as it would allow perpetrators, their legal representatives, advisors, and any witnesses to question survivors live (NY Times, 2024; Inside Higher Ed, 2024). Because of the required live cross-examinations, the single investigator model was not allowed under the Trump administration (Inside Higher Ed, 2024). 

Furthermore, Betsy DeVoss, the U.S. Secretary of Education under the Trump Administration, removed the requirement that a ‘preponderance of evidence’ standard be used in the investigative process (Feminist Majority). Instead, she allowed universities to use the ‘preponderance of evidence’ standard or the ‘clear and convincing evidence’ standard which is more stringent (Feminist Majority).1

1 The “preponderance of evidence” standard is used “to prove that something is more likely than not,” which typically correlates to 51% or higher assurance in one’s decision (Burden of Proof Govt. Document; Cornell LII, 2023).  The “clear and convincing evidence” standard means that “the evidence is highly and substantially more likely to be true than untrue” (Cornell LII, 2022). Therefore, “the fact finder must be convinced that the [argument] is highly probable” (Cornell LII, 2022).  The “clear and convincing evidence” standard is harsher than the “preponderance of evidence” standard. 

Implementation of Retaliation Rules 

After over a year of delays, the Biden-Harris administration implemented a new regulation through the Education Department to finalize their Pro-Equality Title IX Rule. This regulation prevents universities from retaliating against students who had reported any incidents of sexual violence / sexual harassment (SVSH) (Human Rights Campaign, 2024). 

 According to Tracey Vitchers, executive director of It’s On Us, this rule attempts to empower students under a Title which had previously “privileged accused perpetrators over students who were sexually assaulted” (Inside Higher Ed, 2024). 

The regulation will provide the necessary tools for students to “hold their institutions accountable for failing to comply and violating [these] civil rights” (Inside Higher Ed, 2024). 

The Trump administration rescinded the “Obama-era Executive Order that prohibited certain companies from forcing employees into arbitration for workplace sexual assault or harassment disputes” (Sidebar, 2017). Arbitrations are confidential processes where legal documents and attorneys remain private, often making it easier to conceal sexual harassment allegations. Thus, forced arbitration, according to Sidebar can “silence victims” as “they may feel afraid of coming forward because they might think they are the only one, or fear retaliation” (Sidebar, 2017).  

Protections for Pregnant and Breastfeeding Students

The Biden-Harris administration passed new regulations, effective August 1st, which “made it explicit that colleges are obligated to provide requested accommodations for all pregnant students” (Inside Higher Ed, 2024). This also extended to “those who have recently given birth and those experiencing ‘pregnancy-related conditions,’ which include miscarriages, abortions, lactation and more” (Inside Higher Ed, 2024). 

One of the most critical aspects of this legislation is that it mandates that universities inform pregnant students of their rights, which “experts say is almost as valuable as the rights themselves” (Inside Higher Ed, 2024). 

Under the Trump administration, the United States rejected a resolution to promote breastfeeding during a World Health Assembly in Geneva. This resolution aimed to “strengthen the 1981 International Code of Marketing of Breast-milk Substitutes, aimed at stopping false claims that powdered formula is equal to, or even superior to, mothers’ milk” (Foreign Policy, 2018).

Trump’s officials disagreed with this resolution and “sought to water down the resolution by removing language that called on governments to ‘protect, promote and support breast-feeding,’” eventually threatening to “unleash punishing trade measures and withdraw crucial military aid” if the Ecuadorian government, who had introduced the measures, did not drop it (The New York Times, 2018). 

Trump has also promised to “overturn the new [Biden-Harris] regulations connected to what he has called "gender insanity" (ABC, 2024). These regulations intended to protect “against discrimination ‘based on pregnancy, childbirth, termination of pregnancy, lactation, related medical conditions, or recovery from these conditions’” (ABC, 2024). 

Implementation of Informal Resolution

The Biden-Harris Administration regulations maintained the informal resolution process from the Trump Administration (New York Times, 2024). However, the Biden-Harris administration’s rules regarding informal resolution differ from the Trump administration in that a complainant does not need to file a formal complaint to pursue an informal resolution process (Boston University Law Review: Online Volume 96, 2023). Additionally, the updated informal process regulations award institutions discretion in determining whether informal resolution should be implemented (Boston University Law Review: Online Volume 96, 2023). This discretion was included to allow schools to pursue alternative means of disciplinary action in situations where the respondent’s behavior may present further risk to the student community (Boston University Law Review: Online Volume 96, 2023). 

Furthermore, informal resolution facilitators are required to receive training on how to provide impartial service in the informal resolution process (Boston University Law Review: Online Volume 96, 2023). 

Notably, criticism remains that the updated regulations on the informal resolution process does not provide sufficient guidance and that the vagueness of the regulations presents problems for implementation (California Western Law Review: Vol. 57, 2021). 

The Trump administration introduced the process of “informal resolution” to Title IX policy in 2020. Informal resolution, an alternative to an investigation, is a voluntary, structured process between the respondent and complainant in which remedy is sought that meets the needs of the complainant and that allows the respondent to acknowledge and remedy harm (Rutgers University, 2024). It occurs after a complainant files a complaint.

Informal resolution is vague, and, under the Trump administration, it only had two requirements:

1. Both parties must voluntarily agree to an informal resolution (TIME, 2020).

2. Informal resolution cannot include punishment for the respondent (TIME, 2020). 

Because of the Trump administration’s implementation of live cross-examinations, survivors may choose informal resolution to avoid confronting their assailant. 

However, because of the voluntary party requirement of informal resolution, perpetrators of sexual violence can refuse to participate in informal resolution (TIME, 2020). Survivors are beholden to their assailant being agreeable to begin and complete an informal resolution process. 

Additionally, because of the punishment requirement for informal resolution, respondents cannot experience any form of  disciplinary action for their conduct, regardless of severity or proof of conduct (TIME, 2020). Disciplinary action that respondents are protected from under informal resolution include, but not limited to: expulsion, suspension, requirement to undergo sexual harassment training, requirement to change course schedule, and requirement to change housing assignment (TIME, 2020). 

After the Trump administration introduced the process of informal resolution, critics of the policy noted their concern that informal resolution can result in cases of meaningless outcomes and a lack of survivor justice (The New Yorker, 2020). 

Recommendations for Survivor-Centered Title IX Regulations

At present, the Title IX terrain is rapidly evolving with the introduction of the new regulations. The presidential elections will determine the fate of these regulations. At the same time, it may be useful to provide recommendations that should be incorporated by the administration of whichever candidate wins the presidency to bolster survivor-centered Title IX policies on college campuses. 

The explicit inclusion of LGBTQ persons in the Biden-Harris administration’s 2024 regulations cements strong intersectional protections in Title IX policies (GLSEN, 2024). However, the new administration must account for the existing structural gaps, including the lack of queer affirmative staff training and resource allocation for LGBTQ students on campus that inhibit effective protection. Moreover, in line with the need to respond to marginalized groups on campus, the omission of Title IX resources specifically for undocumented students and international students reflects the exclusionary application of Title IX protections. An important step in approaching these exclusionary and limited protections is to introduce legislation to broaden the scope of Title IX sanctions by equitably protecting all students, faculty, and staff. A noteworthy example of such is the recent California legislation, SB 1491, which recently was signed into law by Governor Newsom and requires California public universities and community colleges to designate an employee as a point of contact for the needs of lesbian, gay, bisexual, asexual, pansexual, transgender, gender-nonconforming, intersex, and two-spirit students, faculty, and staff (California Legislative Information, 2024). 

Additionally, with artificial intelligence (AI) permeating different institutional mechanisms, it is imperative that policies on sexual harassment and violence, such as Title IX, recognize the emergence of AI-generated sexual abuse. The new administration must incorporate AI-generated sexual abuse within the scope and definitions of Title IX provisions on sexual abuse and investigation mechanisms. Survivors + Allies has developed a petition calling on University of California to address the critical gaps in current policies with respect to protecting students from AI-generated sexual abuse.

Conclusion

Regardless of who wins the election in November, Title IX regulations can be expected to change. We call on UC administrators and administrators at other institutions to prepare themselves to best serve students and survivors based on the anticipated changes to Title IX regulations.

For further information on how students can engage in advocacy around Title IX, we suggest taking a look at Advocates For Youth’s Know Your IX project, specifically their Organizing on Campus Toolkit.