By Collin Williams, of New Era ADR
For almost a year, there has been excitement and trepidation about how the Biden administration’s proposed amendments (the “Biden Amendments”) will impact Title IX. Only a few of the proposed changes specifically apply to collegiate athletics, but sports is inherently intertwined with the 51 year-old law, which prohibits sex discrimination in any federally-funded educational program.
Title IX is best known for sparking the expansion of women’s sports. The number of female athletes competing in high school and college sports has grown by more than 1,000% since Title IX was implemented.
Title IX also undergirds the processes by which colleges investigate and adjudicate claims of sexual harassment and assault on campus – and athletes are three times more likely than the general student population to be defendants in these matters, according to a 2019 study by USA TODAY. College athletes’ prominence means that the public’s understanding of how colleges handle sexual assault allegations stems from matters involving athletes.
So that we are all working from the same base point of knowledge, here are some of the changes proposed by the Biden administration:
- The primary proposed change that will impact athletic administration, and also the one garnering the most press coverage, is the amendment that would invalidate any law preventing transgender or non-binary athletes from participating in sports that align with their gender identity as opposed to their biological gender at birth.
- The standard of proof for sexual assault cases will move from a “clear and convincing evidence” standard to a “preponderance of the evidence” standard.
- Mandated live hearings that previously allowed for the cross-examination of alleged victims will no longer be required.
- Victims will be allowed to attempt informal resolution of a Title IX allegation before filing a formal complaint.
Now, let’s discuss each of these proposed changes.
Changes to Gender Participation Standards
To date, 20 states have passed legislation banning transgender or non-binary athletes from competing in sports teams outside of their biological gender at birth. The Biden Amendments would make legislation like this illegal under Title IX.
While the majority of disputes relating to these changes will likely occur at the elementary school and high school level, we have already seen the impact that transgender athletes can have at the intercollegiate level. For example, see the success that both Lia Thomas and Iszac Henig had as swimmers on their respective collegiate teams.
As a result, athletic departments will likely have to make accommodations for transgender and non-binary athletes in their chosen sport and gender identity, regardless of whether they would have historically been classified as male or female.
This may create issues from both a competition and a public relations standpoint, but provided the Biden Amendments pass, there will be little ambiguity about what an athletic department will have to do to comply with the law. Summarily denying these athletes the right to participate will be in direct contravention of the law.
The next changes to discuss do not directly affect college sports, but given athletes’ reported over-representation in campus sexual assault matters, one can expect athletic departments and their charges to be particularly interested in them.
Change to the Standard of Proof
There are three common standards of proof in the law. The highest standard of proof is “beyond a reasonable doubt,” which is typically applied in criminal proceedings. The mid-level standard of proof is “clear and convincing evidence,” which may apply to certain civil and/or criminal proceedings. While the lowest standard of proof is “preponderance of the evidence,” which is typically the standard of proof required in most civil cases.
While athletic departments will rarely engage with the actual standard of proof, it’s still important to educate and communicate with the athletes so they fully understand what the necessary proof may be should they be accused of inappropriate conduct.
In the 1984 case Colorado v. New Mexico, the U.S. Supreme Court described “clear and convincing” as proof that “factual contentions were highly probable.” In contrast, a preponderance of the evidence standard is the 51/49 standard, requiring simply that there be more evidence than not that factual contentions are true.
In short, the standard of proof required for a finding that something inappropriate occurred is decreasing under the Biden Amendments. Before an investigator or hearing officer would only have to find that it was more likely than not that the conduct occurred. Now they must find that it is “highly probable” that the conduct occurred. In light of some of the slightly reduced procedural requirements, it makes sense that the standard of proof has increased to affect more balance.
Elimination of Live Hearings
One of the most interesting, proposed changes to Title IX is the elimination of the requirement for a live hearing and the opportunity to cross-exam the witness.
The Trump Administration’s 2020 Amendments (the “Trump Amendments”) stated as follows: “For postsecondary institutions, the recipient’s grievance process must provide for a live hearing. At the live hearing, the decision-maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.” 34 CFR § 106.45(b)(6). This turned Title IX proceedings into de facto court proceedings that closely resembled criminal trials, despite a lower standard of proof.
The impact of the Trump Amendments, while difficult to quantify, was likely a reduction in the number of Title IX filings as many alleged victims did not want to be subject to cross-examination. By eliminating the requirement of a live hearing and, by default, cross-examination, there will likely be more Title IX complaints filed as alleged victims feel more comfortable that their veracity and integrity will not be attacked in a formal and public manner.
There are certainly arguments on both sides as to whether eliminating mandatory live hearings and cross-examination is a good thing. Regardless, it is likely that athletic departments will see an uptick – perhaps a significant one – in Title IX filings, as the process becomes less intimidating.
Informal Resolution
What may be the least controversial of the proposed changes to Title IX is the introduction of informal resolution prior to the filing of a formal complaint.
First, let’s briefly discuss informal resolution. In the simplest terms, informal resolution is very similar to mediation. Without getting into the granular details of different kinds of mediation, the purpose is to have a neutral third party assist in negotiating an agreeable (not necessarily amicable) resolution between the parties.
The issue with informal resolution in the past has been twofold: (a) informal resolution wasn’t specifically allowed under the express terms of Title IX (this was changed by the Trump Amendments); and (b) after the Trump Amendments specifically allowed for informal resolution, the process was still not allowed unless a formal complaint had been filed. As one might infer, the filing of a formal complaint can be a significant deterrent to an alleged victim. As such, informal resolution is still not as ubiquitous as it could be because many parties do not want to take the step of filing a formal complaint.
Because the Biden Amendments eliminate the mandatory filing of a formal complaint to engage in the informal resolution process, there is a strong possibility that the volume of informal resolution requests will increase substantially following the passage of the amendments.
This may significantly increase the influx of Title IX complaints to intercollegiate athletic departments, thereby taxing staff bandwidth even further. Note, however, that there are neutral organizations that can handle informal resolutions outside of the applicable college or university, thereby lessening the burden.
Conclusion
The Biden Amendments promise to change the Title IX landscape in several significant ways when/if they pass. Some of the proposed changes will have little to no impact on athletic departments. But others may directly or indirectly increase the preparation and work necessary for compliance.
Regardless, there promises to be a very new Title IX landscape in the near future, which may require expedited education, communication and adaptation by athletic departments in very short order.
Collin Williams is the founder and chairman of advanced dispute resolution platform, New Era ADR. Collin was previously general counsel at Reverb.com, the preeminent digital marketplace for the buying and selling of musical instruments, gear and equipment.
