Title IX After the 2024 Rule Was Vacated: What Procedural Protections Do Accused Students Have in 2026

Introduction

Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in any education program or activity receiving federal financial assistance. Over the past decade, Title IX's application to campus sexual harassment proceedings has been the subject of intense regulatory and judicial activity. The procedural protections available to students accused of sexual harassment on campus have shifted dramatically depending on which presidential administration holds power, creating instability for institutions and students alike. The January 2025 vacatur of the Biden administration's 2024 regulations brought this instability into sharp relief, reverting the national framework to the 2020 regulations just as institutions had begun adapting to the newer rules.

The 2020 Regulations

The Department of Education issued the 2020 Title IX regulations on May 19, 2020, with an effective date of August 14, 2020. These regulations represented the first time the Department had issued binding regulations specifically governing how institutions must respond to allegations of sexual harassment, replacing decades of informal guidance documents.

The 2020 regulations define sexual harassment to include quid pro quo harassment by an employee, unwelcome conduct that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education, and sexual assault, dating violence, domestic violence, and stalking as defined by federal criminal statutes. The regulations apply to conduct occurring within the institution's education program or activity and within the United States.

For accused students at postsecondary institutions, the 2020 regulations provide substantial procedural protections. Institutions must provide written notice of allegations with sufficient detail and time for the respondent to prepare. Both parties must have equal opportunity to inspect and review all evidence gathered during the investigation, whether or not the institution intends to rely on it. At postsecondary institutions, live hearings are mandatory. Both parties may have advisors who conduct cross-examination on their behalf, and if a party does not have an advisor, the institution must provide one. Decision-makers cannot rely on any statement by a party or witness who does not submit to cross-examination. Institutions must choose either a preponderance of the evidence or clear and convincing evidence standard, but whichever standard is chosen must be applied consistently to all complaints involving students and employees.

The 2024 Regulations and Their Brief Life

The Biden administration issued new Title IX regulations on April 29, 2024, with an effective date of August 1, 2024. These regulations made substantial changes to the 2020 framework. They expanded the definition of sex-based harassment, eliminated the requirement for live hearings at postsecondary institutions, removed the mandatory cross-examination requirement, broadened the geographic scope of institutional jurisdiction, and expanded the definition of sex discrimination to include discrimination based on sexual orientation and gender identity, relying on the Supreme Court's employment discrimination decision in Bostock v. Clayton County (2020).

The 2024 regulations faced immediate legal challenges. Federal courts across the country issued preliminary injunctions blocking enforcement in more than half the states. By the fall of 2024, institutions operated under a patchwork regime in which some followed the 2024 rules, some operated under the 2020 rules due to state-level injunctions, and some existed in legal limbo.

The January 2025 Vacatur

On January 9, 2025, in State of Tennessee v. Cardona, the U.S. District Court for the Eastern District of Kentucky granted summary judgment to the plaintiff states of Kentucky, Tennessee, Indiana, Virginia, West Virginia, and Ohio and two intervenors. The court vacated the 2024 regulations in their entirety.

The court rejected the Department's reliance on Bostock v. Clayton County, holding that Title IX's prohibition of discrimination on the basis of sex is more limited than Title VII's language and that the 2024 regulations exceeded Title IX's statutory authority. The court found that the Department had improperly expanded the statute's reach by folding gender identity and sexual orientation into the definition of sex discrimination. The court further found the regulations vague, overbroad, and arbitrary.

The court held that the challenged provisions so permeated the regulations that they could not be severed, requiring vacatur of the entire rule. The Department of Education subsequently updated its guidance to confirm that the 2024 regulations are not effective in any jurisdiction and announced it would return to enforcing the 2020 regulations. On February 4, 2025, the Department's Office for Civil Rights issued a Dear Colleague Letter confirming enforcement under the 2020 rules, consistent with a Trump executive order defining sex as an immutable biological classification.

The Current Procedural Landscape

As of 2026, the 2020 regulations govern Title IX proceedings nationwide. For accused students at postsecondary institutions, the operative procedural protections include written notice of allegations, the opportunity to inspect all evidence, live hearings with cross-examination conducted by advisors, a prohibition on decision-makers relying on uncross-examined statements, and a consistent evidentiary standard applied to both students and employees.

Institutions that had updated their policies to comply with the 2024 regulations have been advised to elevate their former 2020-compliant policies back to currently applicable status. Investigations that were initiated under 2024 procedures during the brief window of August 1, 2024, to January 9, 2025, present transitional complications that institutions are advised to resolve with legal counsel.

The Office for Civil Rights released a January 2025 resource document regarding online and digital sexual harassment under the 2020 regulations, signaling its intent to resume active enforcement under that framework immediately.

Should the 2020 Procedural Protections Be Codified

The whiplash between the 2020 and 2024 regulatory regimes demonstrates the instability inherent in governing fundamental procedural rights through executive rulemaking alone. When the procedural protections available to accused students change with each presidential administration, institutions cannot plan effectively and students cannot predict what process they will receive.

The 2020 regulations' procedural protections, particularly live hearings and cross-examination, address a genuine due process concern. Federal courts have increasingly recognized that students accused of sexual misconduct at public universities possess due process rights that may require some form of cross-examination. The Sixth Circuit held in Doe v. Baum (2018) that due process requires cross-examination in campus sexual assault proceedings at public universities when credibility is at issue. The Third Circuit reached a similar conclusion in Doe v. University of the Sciences (2020).

There is a strong argument that Congress should codify the core procedural protections of the 2020 framework, including live hearings, the right to advisor-conducted cross-examination, full evidence access, and a consistent evidentiary standard, to insulate them from the pendulum swings of executive rulemaking. Such codification would provide stability for institutions and fairness for both complainants and respondents.

Conclusion

The vacatur of the 2024 Title IX regulations and the reversion to the 2020 framework has restored substantial procedural protections for accused students in campus sexual harassment proceedings. The experience of the past several years demonstrates that relying on regulatory rulemaking alone to govern these fundamental procedural rights produces instability and uncertainty. Congressional action to codify core procedural protections would serve the interests of all parties and provide the stability that institutions and students need.