Yesterday, the Department of Education formally repealed the Biden administration’s 2024 Title IX regulations and restored the 2020 rule promulgated during the first Trump administration. The repeal does little to change the status quo; federal courts already vacated the unlawful 2024 rule nationwide and ED has enforced the 2020 regulation for over a year and a half now. But the move does remove the last source of ambiguity by making the Code of Federal Regulations match the rule that is actually in force.
For civil liberties advocates, this development is welcome news.
When the Biden administration released its rule in April 2024, we warned that it would unconstitutionally undermine students’ free speech and due process rights. The 2024 rule sought to replace the 2020 regulation’s speech-protective harassment standard — a standard required by the Supreme Court of the United States — and eliminated important procedural protections, including mandatory live hearings and cross-examination in higher education proceedings. FIRE raised those concerns during the rulemaking process, arguing that the proposed changes violated the First Amendment and a growing body of case law requiring fair proceedings in campus disciplinary cases.
A federal agency cannot require universities — public or private — to punish constitutionally protected speech. Nor should it pressure institutions to abandon important procedural protections when they are needed most: when students are facing potentially life-altering disciplinary sanctions. (Much of the public debate over the 2024 rule centered on its treatment of gender identity, but that debate lies beyond FIRE’s institutional concerns. Our objections center on civil liberties and exist independently from the Title IX rule’s impact on athletics or other disputes over the meaning of “sex.”)
Federal courts repeatedly found serious problems with the 2024 rule; eight courts preliminarily blocked its enforcement. In Tennessee v. Cardona, for example, a federal district court concluded, among other things, that the expanded harassment definition violated the First Amendment by compelling speech and chilling protected expression.
The contrast with the 2020 regulations is instructive. That rule, which FIRE defended in federal court, largely survived the multiple legal challenges brought against it. One district court invalidated a single sentence governing the treatment of statements by parties or witnesses who did not submit to cross-examination. The remainder of the 2020 framework survived.
Even ATIXA, a leading association of Title IX administrators that criticized parts of the 2020 framework, acknowledged during the litigation over the Biden rule that the 2020 regulations were fair: “We know them. We understand them. They’re fair. They’re workable, even if not ideal.”
The 2020 rule contains protections FIRE sought for years. It uses the Supreme Court’s constitutional, speech-protective standard for student-on-student harassment, limiting actionable harassment to unwelcome conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”
The rule also requires colleges to provide live hearings where parties can test relevant evidence through questioning, requires an institution to disclose all of the evidence in its possession, provides a presumption of innocence, and requires institutions to allow students an advisor of their choice, who can be an attorney.
Those protections are not obstacles to enforcing Title IX. They are basic requirements of fundamental fairness, increasingly recognized by courts after the Obama administration pressured institutions to weaken due process for accused students. They produce more reliable outcomes and reduce the risk that schools will face successful lawsuits over flawed disciplinary procedures. We should want schools to get these difficult proceedings right the first time, for the benefit of everyone involved.
The alternative is the sort of ping-pong between campus proceedings and federal courts that became far too common following the Obama administration’s infamous “Dear Colleague” letter. Accused students suffer obvious harm. Complainants do, too, when defective procedures force them through a process that can drag on for years instead of being handled correctly the first time. And when institutions repeatedly get these cases wrong, public trust erodes.
The Education Department’s latest action therefore does something useful even though federal courts already settled the immediate legal question. Until now, anyone searching the Code of Federal Regulations would still find regulatory text that had been declared unlawful and was no longer being enforced. The Department itself acknowledges that this created unnecessary uncertainty for schools, students, parents, and courts. The repeal removes the invalid provisions and reaffirms the 2020 rule.
After years of regulatory uncertainty, clarity is welcome.
You write that “much of the public debate over the 2024 rule centered on its treatment of gender identity, but that debate lies beyond FIRE’s institutional concerns. Our objections center on civil liberties and exist independently from the Title IX rule’s impact on athletics or other disputes over the meaning of “sex.” I beg to differ. Sex is the most inherent and base factor affecting women’s - females’ - civil liberties. It’s disappointing that FIRE ignores this.
Celebrate every win.