As Biden’s Title IX regulations face lawsuits, Yale remains bound by Trump-era policies
Universities across the country, including Yale, remain tied to Trump-era Title IX policies as Biden’s reforms continue to face legal challenges. Could this prevent Biden’s changes from ever reaching Yale’s campus?
YuLin Zhen, Photography Editor
President Joe Biden’s Title IX regulations were meant to go into effect on Aug. 1. However, after legal challenges from several states and conservative groups, district courts issued preliminary injunctions on the ruling, blocking its implementation across the country.
Biden’s Title IX Rule brought large changes from former president Donald Trump’s 2020 regulations. Some of the changes under Biden’s Title IX policies included a redefinition of sexual harassment, how promptly schools should respond to sex-based harassment, new training measures and new rules on prevention and monitoring barriers to reporting, and when supportive measures for parties affected will be provided.
Through the Department of Education, presidents have the authority to define how universities should interpret Title IX protections. However, due to differences between Democrat and Republican administrations over the last decade, Title IX policies have been debated — and changed — every four years, and likely to be challenged again after the 2024 election.
“If you were a Title IX Coordinator, you would be pounding your head on a wall right now, because it’s like, ‘Wait, yes, it is covered, no it’s not covered,’ and it’s hard to keep up,” Jody Shipper, managing director at Grand River Solutions, told the News.
Injunctions blocking Biden’s implementation at Yale and other campuses
A federal court in Kansas recently blocked the 2024 Title IX regulations from being enforced in Alaska, Kansas, Utah and Wyoming. The Education Department also cannot enforce the new rules in schools attended by children of members and members themselves of the plaintiff groups who sued along with the states, including Young America’s Foundation, Female Athletes United and Moms for Liberty.
Yale’s Title IX Coordinator Elizabeth Conklin confirmed to the News that Yale is subject to the injunction from implementing the 2024 regulations and currently abides by Trump’s 2020 rules.
Shep Melnick, a professor of American politics at Boston College, said he was “surprised” by the Supreme Court’s recent decision to block the Department of Education’s request to partially implement Biden’s rules. While most of the litigation is focused on the rules protecting transgender students, the injunctions apply to all of them. He said that the Supreme Court decision signaled their “doubts about other parts of the regulations as well.”
He told the News that nationwide injunctions by district court judges, like in the Kansas ruling, are fairly new. He explained that this trend is due to state’s attorney generals “trying to find the states and districts where they’re most likely to win, and then flooding those areas with suits.”
However, Melnick said, cases that issue injections in states or against colleges in which members of these organizations are enrolled are “extremely unusual.”
On Yale’s Campus
Given the injunction, Conklin wrote that the Title IX office is “still assessing the regulatory changes and determining how our Yale policies and procedures may change.” However, she noted that Yale’s resources and initiatives addressing sex discrimination and sexual misconduct will remain, regardless of changes in rules by presidential administrations.
“As the national conversation on Title IX has evolved, Yale continues to strengthen its implementation to go beyond basic compliance,” Samuel Byrd, director of the Yale LGBTQ Center, told the News. “The work is ongoing but I do believe Yale continues to be a national leader in this area and that is a direct testament to the brilliant work and recommendations of our students, faculty and staff.”
Sarah Demers, the University-Wide Committee on Sexual Misconduct chair, wrote that in the cases the committee details, it relies on an independent investigator to conduct interviews and gather documents and that this won’t change in response to the new regulations.
Shipper also explained that while some states now clearly outline protections for LGBTQ students or students based on gender, “if the Department of Education cannot protect on the basis of gender, it would be up to private schools that can still do that, and schools can rely on state law, but it would not be across the board.”
Title IX between Trump and Biden
According to Maha Ibrahim, senior attorney at the Equal Rights Advocates nonprofit, Title IX started as a 37-word mandate, signed into law by former President Richard M. Nixon. The mandate said, “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 educational program or activity receiving Federal financial assistance.”
Starting with George W. Bush’s ’68 administration, the Department of Education has been issuing guidelines on interpreting Title IX, and “really started to get into some detail about how a school should go about fulfilling its Title IX obligations,” Ibrahim said.
Ibrahim explained that these guidance documents signal how the Department of Education will interpret the regulations when investigating universities for Title IX violations. Schools, thus, are encouraged to follow the regulations to avoid penalties, such as losing federal funding.
In the 2000s, activists on college campuses sought to address the sexual assault problems. The activism “found a very friendly ally” — then Vice President Joe Biden, according to Shipper, which helps college campuses implement Title IX policies.
Former President Barack Obama’s administration, seeking to address sexual assault prevalence, implemented Title IX’s rulings which mandated “interim measures” — temporary actions taken by schools to protect the safety and well-being of those involved in Title IX cases. Some measures implemented by universities in response were criticized as “harsh” towards those accused, such as suspending them or limiting their access to campus.
“There was, as you can imagine, some blowback, and it really suited the positioning of the next president, which was Trump,” Shipper said. “His whole thing was, ‘We have all these fine young men, and they’re just being maligned, and we need to do something.’”
In Trump’s rules, sexual harassment was defined as having to be so “severe” and “pervasive” that it “effectively denies” a person access to school or activities, Ibrahim explained.
Biden’s Title IX rules released in April 2024 sought to reverse Trump’s changes by lowering the threshold for sexual harassment back to “severe or pervasive” instead of having to fulfill both qualifications. According to Ibrahim, proving one of those conditions, instead of both, makes the whole argument much easier.
These changing rules from each presidential administration have left college campuses in “whiplash,” according to Ibrahim — the process is “politicized and it’s really distracting from the essential question” of whether students have equal access to their education.
Under Trump’s ruling, schools also had to address sexual harassment if it occurred off campus and inside the U.S. It also had to meet specific criteria regarding where it occurred, such as within a school program or digital platform, an official student group’s building or under the school’s “substantial control,” meaning in contexts directly overseen by the institution.
Biden’s ruling broadens this, mandating that regardless of where an underlying incident occurs — off campus or outside the U.S., for example — schools must address it if it results in a sex-based “hostile environment” back at the institution.
Additionally, Biden’s ruling uses “disciplinary authority” instead of “substantial control,” emphasizing that if a school has the authority to discipline the related behaviors, it must respond to the incidents.
Schools under Trump’s ruling also must address incidents in a way that is not “deliberately indifferent.” Biden’s ruling changes the way in which schools must address incidents — with “prompt and effective action.”
Biden’s ruling also would no longer require complainants of sex-based discrimination or harassment to attend the live hearings or be cross-examined by the respondent — Trump’s rulings do. Instead, those who raised the concern can choose to participate remotely, or schools can interview students remotely.
Biden also partially expanded LGBTQ+ protections for students by defining discrimination to explicitly include sexual orientation, gender identity, sex characteristics — including intersex traits — and sex stereotypes.
The Biden administration initially also intended to introduce a policy prohibiting schools from implementing blanket bans on transgender athletes, but that provision was temporarily delayed and not included in the final Title IX rulings.
“Game of Roulette”: Future administrations and regulations
Conklin wrote that, regardless of any changes to Title IX policies, “Yale will maintain its strong commitment to preventing sexual misconduct and responding compassionately and equitably to reported concerns,” noting that “no regulatory changes will alter this commitment.”
Shipper and Ibrahim explained that what each administration would look like is relatively clear. Shipper said that if Trump is reelected, there will likely be a return to 2020 regulations and a prohibition against providing protections on the basis of gender.
Ibrahim added that even if somehow all the injunctions were lifted and the Biden regulations were implemented tomorrow “we have a lot of fighting to do because they don’t include the most vulnerable people who are excluded on the basis of their orientation, gender and gender identity.”
Melnick also believes that if Trump wins, he will eventually return to the 2020 regulations or a similar set of policies, but his administration will probably ask the Supreme Court to keep the injunctions in place and not review them until they write new or updated regulations.
Melnick said that while changing rules under different administrations does feel like “whiplash,” it is better than the alternative.
While he believes the rule-making process did help improve the process because it allows for more public participation and careful judicial review, he would not want an alternate solution to look like the Dear Colleague Letters — Obama’s Title IX policy.
He explained that rules do create a “certain kind of stability” and they’re “hard to do and they’re hard to undo,” but he would like to see the rule-making process streamlined to some extent.
“I will say that if we get another administration that’s hostile to this right, the damage that has already been done will be continued such that I don’t think that in your or my lifetime, we will get back to anything tracking gender equality on campus … Whether or not women and LGBTQI people are able to complete their educations, to get good educations, to be in the fields that they choose to be in will be like a game of Roulette,” Ibrahim said.
Yale’s Title IX office is located at 82-90 Wall St.