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University of Houston




The federal Department of Education’s (DOE) 2020 Title IX Rule fundamentally transformed the relationship between postsecondary schools (schools) and students. While courts have long warned against turning classrooms into courtrooms, the 2020 Rule nonetheless imposed a mandatory quasi-criminal courtroom procedure for Title IX sexual harassment investigatory proceedings in schools. This transformation is a reflection of the larger trend of importing criminal law norms and due process protections into Title IX school proceedings. It is especially regressive at a time where calls for long-overdue criminal justice reform are reaching a boiling point across the nation. Its effects are especially troubling because DOE linked the changes with tenets of rape exceptionalism, which has historically burdened women alleging rape, notably those with marginalized identities. As a result, the 2020 Rule requires schools to treat survivors of sexual assault, who are disproportionately women, LQBTQIA+, BIPOC, or a combination, differently than those who report discrimination based on other protected identities, such as race. While Obama-era guidance sought to effectuate Title IX’s equality aim by mandating that schools make significant changes to redress a history of limited Title IX enforcement and to align Title IX with classic models of civil rights implementation, DOE’s 2020 Rule swung the pendulum far in the opposite direction, creating a very different mandatory system for schools that is unfairly balanced in favor of respondents. This pattern of shifting obligations for schools will continue until a concerted effort is made to return to what Title IX stands for at its base—equal access to education for all students. The Office for Civil Rights and schools must refocus and recenter on Title IX’s promise of ensuring equal education based on sex, especially in light of the 2020 Rule. In this Article I argue that Title IX enforcement must: (1) start viewing schools as educational institutions, not courts of law, and (2) incorporate an intersectional approach throughout all aspects of its implementation. Creating a Title IX that works means studying and developing policies and procedures that incorporate intersectionality; it means aligning with general civil rights law implementation; and fundamentally, it means bringing the pendulum to rest.

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