Trump’s Likely Title IX Rule Reversals Will Bolster Due Process

The lead-up to the sweeping April 2024 changes to Title IX’s implementing regulations pitted procedural fairness for those accused of campus sexual harassment against protections for those claiming to have been abused. The public debate surrounding these and other controversial revisions to the implementing regulations was as sharp as it was divisive.

The Biden-era Department of Education was of course entitled to make it easier on policy grounds for college administrators to discipline and expel students and staff accused of misconduct. But the incoming Trump administration, already highly skeptical of the DOE, is almost certain to reverse those policies.

Roughly 22 million students and staff attend or are employed by colleges and universities, based on data from the Education Data Initiative and the National Center for Education Statistics. Administrators must be ready to pivot and re-adapt to rules that strike the balance in favor of more effectively safeguarding the rights of the accused.

Serious Stakes

An allegation of sex discrimination is serious business for the alleged victim and accused—and for the institution and its stakeholders. A determination that a student or staff member violated the institution’s code of conduct can result in expulsion, diploma revocation, criminal referral, and other potentially life-altering sanctions.

Although dismissal from a university naturally differs from punishment following a criminal prosecution, both can result from the same alleged misconduct and carry comparable consequences.

The loosening of campus due process also may have a disparate impact on Black and other historically underrepresented and marginalized students and staff. Studies have shown that campus administrators are far likelier to punish historically marginalized students and international students.

Due Process Considerations

Although Title IX covers considerable ground, the incoming administration is most likely to quickly address four campus due process safeguards.

Standard of proof. The Biden DOE’s revised regulations established a default presumption that adjudications of responsibility are based on the preponderance-of-the-evidence standard of proof. The Trump administration is expected to return to the more rigorous clear-and-convincing-evidence standard it put in place during President-elect Donald Trump’s first term.

Opponents of this change may argue that it would make it too difficult for administrators to discipline or expel students they believe violated the campus codes of conduct. But a higher standard of proof would help ensure final decisions are viewed as defensible and trustworthy. Further, a more exacting standard aligns with the potentially life-altering consequences of a “guilty” determination.

Single investigator model. Under the Biden-era rules, an institution’s Title IX coordinator or investigator can be the ultimate fact-finder and decision-maker. The campus administrator responsible for making violation determinations can be the de facto prosecutor, judge, jury, and (disciplinary) executioner on the same matter.

The DOE, seeking to support this pro-enforcement model, has claimed that “requiring separate staff members to handle investigation and adjudication is burdensome for some recipients.” Although this is true, having a neutral fact-finder and ultimate decision-maker is critical if the goal is to follow a substantively fair process that broadly mirrors our most basic due process expectations in all other quasi-judicial environments.

The administrative burden argument also rings hollow when considering other far more material administrative impacts flowing from the Biden-era’s many other boundary-pushing Title IX changes to, among other things, college athletics. Considering the findings’ institutional importance and potential individual impacts, saying “ensuring due process is too much work” isn’t a winning argument.

Live hearings and cross-examination. The 2024 changes to Title IX’s implementing regulations also eliminated the Trump-era right to a trial-like live hearing, which included the right to engage in cross-examination.

According to those supporting the DOE’s approach, cross-examination threatens to re-traumatize complainants, inject an unnecessary adversarial dynamic, and dissuade misconduct reporting. These are legitimate concerns, but they don’t operate in isolation. Such dynamics must be balanced against the importance of a fair and rigorous fact-finding process.

As the US Court of Appeals for the Sixth Circuit’s 2018 ruling in Doe v. Baum highlighted, “if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent [1] an opportunity to cross-examine the accuser and adverse witnesses [2] in the presence of a neutral fact-finder.” The court further noted that the “opportunity to cross-examine the accuser and adverse witnesses” is a central component of a fair process during which competing narratives must be resolved.

These should be crucial fundamental fairness considerations, no matter who is in the White House.

Expert testimony. The revised regulations gave colleges and universities discretion to categorically prevent parties from presenting expert witnesses. The DOE explained that “the use of expert witnesses may introduce delays without adding a meaningful benefit to the recipient’s investigation and resolution of the case.”

However, this argument loses persuasive force when one considers that the decision-makers during a hearing will have to render many equally or far more challenging judgments. Determining whether specific expert testimony is relevant isn’t a terribly heavy lift.

Neutrality and Fairness

Trading administrative efficiency for due process when the stakes are high is generally a bad exchange for all involved.

Although well-intentioned, the Biden-era 2024 changes have already generated considerable litigation and, in many circles, undermined confidence in institutional commitments to fair and transparent truth-seeking.
They have created a feeling that campus disciplinary proceedings are often little more than rubber stamps, despite their grave consequences.

The accused deserve reliable fact-finding. Victims are entitled to robust, defensible determinations of their victimizers’ factual guilt. It’s a virtual certainty that the Trump administration will seek to rebalance the current state of play on campus disciplinary proceedings. Administrators should begin preparing for the return of more rigorous due process standards and the administrative demands such a realignment entails.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

T. Markus Funk is partner in Perkins Coie’s white collar and investigations practice and founding co-chair of the firm’s higher education practice.

Ella Uhde contributed to this article.

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