New Biden Rules Would Bar Discrimination Against Transgender Students – The New York Times

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The proposal expands the definition of what constitutes sexual harassment, and the types of episodes that schools are obligated to address and investigate — to include, for example, incidents that took place off campus or abroad, as well as incidents that create a “hostile environment.” The new rules would also roll back the most controversial of Ms. DeVos’s rules, and make live hearings and cross-examination optional, rather than required.

The proposal retains aspects of Ms. DeVos’s rules — which drew more than 120,000 public comments and unsuccessful legal challenges — that emphasize the presumption of innocence, fair and unbiased investigations, and equitable rights of accused and accusers.

Still, the proposal “has flaws that sets it up on a collision course with the courts,” said Joe Cohn, the legislative and policy director at the Foundation for Individual Rights and Expression, a nonpartisan civil liberties group.

Mr. Cohn said that the administration’s backtracking on live hearings and cross-examinations, as well as its deviation from the Supreme Court definition of sexual harassment used by Ms. DeVos, ignore free speech and due process rulings that have already found such measures essential to Title IX case deliberations. The rule also reinstates a “single investigator” model that courts have found problematic, he said, under which one person acts as judge and jury.

“This rule acts as if that body of case law does not exist,” Mr. Cohn said. “They need to make significant revisions if they want the regulation to survive.”

The proposal, predictably, divided Congressional lawmakers along partisan lines. Senator Richard M. Burr, Republican of North Carolina and the ranking member of the Senate Education Committee, said the proposed change made clear “the administration is placing accusations of guilt above fair consideration of the evidence.”

Source Article from https://www.nytimes.com/2022/06/23/us/politics/biden-transgender-students-discrimination.html

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