A new proposed federal Title IX rule would leave it up to colleges to decide whether to hold a live hearing as part of the campus procedure for determining whether a student is responsible for sexual assault.
Colleges including the University of Arkansas, Fayetteville in 2020 began requiring such hearings to comply with the rule put in place under former Education Secretary Betsy DeVos, who frequently spoke about the importance of "due process" in campus proceedings for those accused of misconduct.
The federal Department of Education on Thursday released for public comment the proposed new rule for Title IX, which is the law prohibiting sex-based discrimination at schools receiving federal money.
"We are aware of the proposed rule announced today and now open for comment," UA spokesman Mark Rushing said in an email when asked whether the university will continue its policy requiring hearings.
"Any possible adjustments to our existing policy would not be determined until after careful review of the final regulation as adopted," Rushing said.
The proposed new rule also has a revised definition of "sex-based harassment" that includes discrimination based on gender identity.
On Thursday, a group of 18 Republican attorneys general -- including Arkansas Attorney General Leslie Rutledge -- signed onto a letter addressed to Education Secretary Miguel Cardona that criticized the new proposed rule, stating that "defining the term 'sex' to include gender identity will destroy women's sports."
The Education Department released the new proposed rule 50 years to the day after Title IX was signed into law.
While Title IX has been widely hailed as expanding opportunities for women to participate in college sports, the Education Department's announcement Thursday stated that a separate process will take place "to address Title IX's application to athletics."
Rutledge and the other attorneys general, however, in their letter scoffed at the idea of a separate rulemaking pertaining to athletics.
"Your proposed rule merely pretends to reserve the issue of biological males participating in women's sports for a separate rulemaking," the letter states, going on to criticize the participation of transgender women in athletics.
The letter also praised the 2020 Title IX rule while denigrating the effort to make a change.
"Your newly proposed rule guts the historic 2020 Rule. And it does so for no reason other than some apparent need to pander to your far-left constituencies," the letter stated.
The split over Title IX rules has been highly partisan. Democratic attorneys general challenged the rulemaking under DeVos, an appointee of former President Donald Trump, a Republican.
The proposed new rule states: "Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity."
In the letter, the Republican attorneys general stated that they "will fight your proposed changes to Title IX with every available tool in our arsenal."
Title IX does not apply to educational institutions controlled by religious organizations "to the extent that application of Title IX would be inconsistent with the religious tenets of the organization," according to the Education Department's website.
Under Title IX, schools receiving federal funding generally must respond to student reports of sexual harassment and sexual assault, including by providing supportive measures -- such as class schedule or room changes, for example -- to students reporting misconduct.
Colleges must also investigate and provide a fair process to determine if misconduct occurred.
Rutledge in July 2020 joined in a friend-of-the-court brief filed with other Republican attorneys general to support the regulations put forth by DeVos.
The July 2020 court brief stated that requiring colleges to hold live hearings reflected "a reasonable, straightforward approach to resolution of Title IX complaints that protects both complainants and respondents' due process rights."
The Education Department on Thursday described the regulations as allowing colleges "to tailor procedures to be effective at addressing sex discrimination in their educational environment by providing an option to conduct live hearings with cross-examination or have the parties meet separately with the decisionmaker and answer questions submitted by the other party when a credibility assessment is necessary."