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The Biden administration on Thursday proposed new rules for how schools must treat sex discrimination under Title IX. If approved, the regulations would reverse Trump-era rules that limited the scope of sexual assault investigations on campuses. The Washington Post's Moriah Balingit joins Geoff Bennett to discuss the administration's proposal to level the playing field.
And for more on those major changes proposed to the landmark law, I'm joined by Moriah Balingit, education reporter for The Washington Post.
It's good to have you with us.
And the Biden administration, as you know, in proposing these new rules today, they're effectively tossing out the Title IX rules introduced back in May 2020 by then-Trump Education Secretary Betsy DeVos. And those were controversial because, among other things, they reduced school's reporting responsibilities regarding sexual misconduct, and they strengthened the rights of the accused.
So, in what significant ways does this proposal, this new Biden proposal, depart from the current regulation?
Moriah Balingit, The Washington Post:
So one of the most significant things is that it offers schools a lot more flexibility.
The DeVos rules were very prescriptive. So, for example, they required live hearings for — to adjudicate accusations of sexual assault, which meant that everybody had to be in the same room. Or, in the case of, after the pandemic, everybody had to be in the same Zoom room. And it created an atmosphere of intimidation for some people who were reporting, and they were concerned that people would not report because they did not want to go through that process.
The proposed rules today allow schools to do that if they want to, but it does not require them to do it.
And, for the first time, LGBTQ students would have federal protections under Title IX.
Looking at the way the law was written back in 1972, there's no explicit language that touches that topic. So how would they have new rights? How would that work under this new proposal?
Well, as you know, Title IX prevents discrimination the basis of sex.
And there's long been a debate about whether that covers sexual orientation and gender identity. And the administration wants to make very clear that it does cover both of those topics. So that means that schools are not permitted to discriminate against transgender students or LGBTQ students on the basis of their gender identity.
So they have to address things like harassment. They have to accommodate students in bathrooms as well.
And yet, Moriah, there's nothing in this set of proposals, at least not yet, dealing with the rights of transgender students in sports.
What accounts for that delay? Is that a political consideration, given that there's a conservative push across the country? Eighteen states now have formalized laws preventing transgender students from participating in sports.
Yes, it's not clear why they made the decision to wait on that particular aspect.
Certainly, I would say that it's one of the most controversial. And, as you said, yes, there's been a lot of — there's been several states that have outright banned transgender students from participating in school sports. It is very complicated. It's going to require a lot of nuance and perhaps a lot more thought.
And, certainly, I'm sure that there's a fear that, if the Republicans take the House and Senate in the fall, that they can overturn this with the Congressional Review Act.
So what happens next? There's a public comment period. There will certainly be pushback. There may even be legal challenges.
What's the expectation for what's coming in the weeks and months ahead?
Well, I certainly expect to see more backlash from conservatives.
That's what we saw, for example, when Obama issued guidance protecting transgender students. And, right now, it's just the start of a long, very tedious process to make these rules. So they will solicit comments. The last set of rules got over 100,000 comments. So I expect a lot of people to want to weigh in.
I think that they want to just carefully consider exactly how this is going to play out.
And, Moriah, If this proposal is finalized, it would mark the second rewrite of Title IX in two years. You have the Trump era rules, which were essentially a rewrite of the Obama era rules. And now you have the Biden proposal, which is meant to replace the Trump era regulation.
Give us a sense of the ping-pong effect, the whiplash effect that schools are likely facing right now.
I mean, certainly, this is a really complicated area of the law, and it involves administrative procedures. It involves civil rights.
But I think a lot of school administrators are going to be pleased that they actually have more flexibility under these rules, so that they can kind of make decisions about whether they want to have things like live hearings. They can decide what standard of proof they use, things along those lines.
So I actually think that some administrators may view this in a positive light, even though it is changing things.
Moriah Balingit of The Washington Post, thanks so much for sharing your reporting and your insights with us.
Thank you for having me.
And we thank you both.
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