Back to School 2025: Title IX Updates and How ADR Can Help Universities Resolve Disputes

As students return to campus this Fall, university leaders are stepping into a new semester following two notable Title IX developments this year. In January, a federal court overturned the Biden administration’s updated regulations, sending schools back to the stricter 2020 rulebook. Then in August, a Texas federal judge ordered Stephen F. Austin State University in Texas to reinstate three women’s sports teams, halting planned cuts in the face of a Title IX class action.

In this episode of the JAMS podcast, neutrals Angela Downes, Esq. and Bernard Taylor, Sr., Esq., unpack what these shifts mean for higher education. They discuss what parties need to know about Title IX as it currently stands and how ADR can serve as a powerful tool for reaching resolution.

Moderator (00:00:02): Welcome to a special podcast from JAMS, where today we are talking about the changing landscape under Title IX and how arbitration can be a powerful tool for universities to manage compliance, risk and trust. With us are two JAMS neutrals, both with significant Title IX mediation and arbitration experience. Bernard Taylor, a fellow of both the American College of Trial Lawyers and the American College of Civil Trial Mediators and Angela Downes, a professor at the University of North Texas at Dallas College of Law.

Bernard, Angela, welcome to the podcast.

Bernard Taylor (00:00:42): Andrew, we are glad to be here. Thank you.

Angela Downes (00:00:45): Andrew, so very glad to be with you today.

Moderator (00:00:49): Bernard, you know, there have been so many shifts in the Title IX landscape in recent months. Can you just start us off by telling us a little bit about those shifts?

Bernard Taylor (00:01:00): Sure. Title IX, as a result of all of the activity that has been visited upon these regulations, has become a victim of constant change from the 2020 regulations to the 2024 changes and expansion of those regulations to the explosion of follow-up litigation and then the 2025 vacating of the 2024 regulations. The uncertainties regarding the impact of the Title IX regulations abound. Let us take a quick look at just some of the differences between the 2020 regulations and the 2024 regulations. The 2020 regulations require a formal complaint and that the complaint be signed by a complainant or by a Title IX coordinator on behalf of the complainant, and that it be based upon actual knowledge of severe, pervasive and objectively offensive conduct. The 2024 expansive regulations, though, allow that the complaint could be written or could be oral and it could be submitted by a list of individuals who may have some knowledge about the conduct. And, the standard is that any reasonable conduct may constitute offensive conduct. And just a couple of more issues about the differences between the 2020 regs and the 2024 regs is that the 2020 regulation defines sexual harassment more narrowly than the 2024 regs.

The 2024 regs include sexual orientation, gender identity and sex characteristics as protected categories under Title IX, and the 2024 regs also provide protections for LGBTQ students. It focuses on the fact that they should have access to bathrooms and changing rooms consistent with their gender identity and that pregnant students should have accommodations for their pregnancy to allow them to continue their educational pursuits. After the 2024 regulations were put in place, then we all experienced what some have called the summer of discontent, where all of this litigation has been filed in order to have injunctions imposed against the new 2024 regulations, including in particular the LGBTQ+ student regulations and the regulations provided to pregnant students. Then, we have the case in Tennessee, Tennessee vs. Cardona, which resulted in a nationwide injunction of the 2024 Title IX regulations. So, as a result of all of that activity, then we come to January of 2025 and the Department of Education stated at that time that the 2024 final rules would no longer be effective in any jurisdiction, creating the landscape we are in now with the considerable degree of uncertainty regarding the impact of Title IX.

Moderator (00:04:11): And I take it that uncertainty has created nightmares for compliance?

Bernard Taylor (00:04:15): Correct. And as a result of that, the schools and the educators at the schools need to be sure that their policies are consistent with the current regulations and that their policies not only consider whatever the federal regulations are, but also look at state regulations that may have some direct impact on the programs that they have in place for their students.

Moderator (00:04:44): Thank you, Bernard. Angela, the gender discrimination case requiring Stephen F. Austin State University to reinstate three women's sports teams has gotten a lot of attention. Can you tell us a little bit about that case?

Angela Downes (00:04:56): Absolutely. Stephen F. Austin, it is a small liberal arts college located here in Texas where I am, and it faced a sexual discrimination class action lawsuit for alleged Title IX violations. It was filed by six current Stephen F. Austin athletes, after Stephen F. Austin announced the elimination of women's beach volleyball, bowling and golf teams in May of 2025. They alleged that Stephen F. Austin is violating Title IX by depriving women of equal opportunities and intercollegiate athletics. A federal judge then ordered Stephen F. Austin to temporarily reinstate these women's teams, along with other women's varsity teams. And then in August of 2025, there was an injunction reinstating three women's teams at beach volleyball, bowling and golf. Now, the colleges argument is that they are not moving forward with these women's teams because of economics. They simply said they cannot afford to move forward with and pay for and fund these women's teams and that it has nothing to do with equal opportunities.

Moderator (00:06:24): Angela, what do you think the broader significance of this case is?

Angela Downes (00:06:27): Well, I think the broader significance of this case is there has been really a change and shift of how women's athletics are viewed. There is now with the WNBA on the professional side of basketball…with March Madness…and really the excitement that the women's basketball program in South Carolina has brought for the past couple of years. And these athletes from Stephen F. Austin, it seems as though they are wanting to ensure that they have a seat at the table and that their sports dreams are able to go forward just as they would in a men's sports program.

Moderator (00:07:31): What should schools consider when they are confronted with these types of disputes?

Angela Downes (00:07:37): These disputes are really centered around program cuts from the university standpoint and resource distribution. These programs can be quite expensive for universities and oftentimes, there might not be a way for schools to really keep the programs going. So, arbitration can really be positioned as a way to look at a compliance safe resolution tool that can really oftentimes avoid litigation cost. To get a case named as a class action takes time, effort and resources. Where it had been handled, perhaps in an arbitration setting, it might be more cost effective for both parties. So, I think that is another consideration for parties with these types of cases.

Moderator (00:08:43): Well, thank you for that, Angela. In terms of other Title IX disputes, I mean that one is getting a lot of attention, but there are so many other kinds of categories, right? What do you see the most often?

Angela Downes (00:08:56): Well, you know, there are several main categories for Title IX cases. You know, we talked about athletic equity, but some of the main categories also include sexual harassment, gender discrimination, pregnancy and parenting discrimination as well as retaliation.

We know that Title IX, from its context, is a federal civil rights law that prohibits sex-based discrimination in any educational program or activity that receives federal funding.

Moderator (00:09:28): Angela, how are these disputes typically resolved? Can you talk a little bit about why arbitration might be a good option?

Angela Downes (00:09:36): Yes. A lot of universities will create a system to handle these cases, and many times this will look like an informal resolution process where the universities will create a structure where aggrieved parties can come before a board, a panel… a decision maker of some type in order to resolve that Title IX complaint. A lot of times when universities use this in informal resolution, they are looking to resolve these complaints quickly, really without a full investigation or a disciplinary hearing. And that can be something that can be a very slippery slope because when you have that informal resolution setting, oftentimes those settings are voluntary. You cannot make parties participate and there is consent that you have to get and sometimes this might work. The informal resolution might work for something on a lower level if it is something where perhaps parties need to apologize for behavior, if there is a training that can be kind of a rehabilitation for behavior. But oftentimes, if it is a larger issue or more complex issue or an issue that is perhaps garnering more attention, arbitration can really be an effective way to resolve the situation. Generally, the arbitration will be tied to a more formal grievance procedure.

A lot of times campuses have a Title IX coordinator who would receive a report, and there would be a system that would be in place through the university policies and procedures, which would lay out how those procedures would unfold. Bringing in an arbitrator is something that can be extremely effective for the university because they can really sit and come in as a third party who has no claim, has no stake in the situation, and really help to make decisions. And it is nice to be able to separate and have a third party really look and to hear all of the evidence to help with the structure of whatever grievance procedure or hearing that is going to unfold. To have someone that can really come and take that over can be extremely, extremely effective.

Moderator (00:12:46): Bernard, name, image and likeness payments to student athletes have brought revolutionary changes to campuses across the country. What guidance do universities have to stay compliant with Title IX in this area?

Bernard Taylor (00:13:00): You know, once again, the confusion regarding issues involving education and especially Title IX continues. In January of 2025, the Biden Administration's Department of Education issued guidance regarding the NIL compensation and basically said that it should be treated like athletic financial assistance and that NIL payments if provided or supported by the institution, must be distributed proportionally to the gender makeup of the student body to satisfy Title IX’s gender equity.

Well, of course later in January of 2025 when the new administration came in, the Department of Education issued new guidance that suggested that NIL payments must be proportionally distributed between genders to comply with Title IX. And the new directive from the new administration said Title IX does not dictate how revenue generating athletic programs should allocate NIL compensation, nor does it require proportionate distribution of such payments. And so, as you can tell from the language in the new regulations, it is ripe for litigation. And when you add on top of that kind of confusion about when the regulation says that it doesn't require proportion of distribution, but on the other hand, the schools still have an obligation to ensure gender equity in their overall athletic programs, then, you know, the litigation is coming down the pipe. One case that I am certain our audience would have heard something about is that NCAA antitrust settlement. In that case, very similar to the issues that Angela raised about gender and the cases where the women athletes and others were fighting against issues that made it difficult for them to share equally in educational and athletic opportunities. The judge in that case approved the settlement, but rejected the Title IX based objections by the women who were litigants in that matter and basically said that the Title IX based objections fell outside of the scope of the antitrust case. What that means is that there is going to be additional litigation to figure out, okay, the Title IX objections fall outside of the antitrust case, but in regards to Title IX issues in cases involving how schools are going to divvy the funds that are going to be given out or basically pursue the NIL program, we can expect that there is going to be a good bit of litigation over those issues. So, your question was some guidance to the schools on how to handle that, and I think the best way to handle it is to make sure that you get very good advice from legal, from lawyers, from your legal staff on how you blend together the gender obligations that we have to be fair, along with the legal obligations and guidance that we're receiving from the Department of Education.

Angela Downes (00:16:24): If I might just comment on this. I think, as Bernard has pointed out, this topic is ripe for litigation. I think it is one that everyone is watching quite closely. I also think that folks in Title IX offices, administrators, I agree, need to work very closely with their legal team. They need to be monitoring NIL because it is something that is swiftly changing. I do want administrators, Title IX coordinators, and other staff to also recognize that the NCAA, their interim policy prohibits NIL deals that are tied to athletic performance and also acting as recruiting inducements, or that the schools themselves enter into them with their athletes. So, there is some things that are already set, but then there is some uncharted territory that we do not know about yet. We know that the interim policy prohibiting those deals tied to athletic performance is looking at things like betting and gambling and ensuring that athletes are not doing things to affect the outcomes of the sports games that they are playing in. But this is certainly unchartered territory and certainly ripe for litigation. So, we are going to all stay tuned to see what happens.

Moderator (00:18:12): Angela, we have talked about a lot of potential disputes and a lot of different categories of Title IX. How do you think institutions should be thinking about dispute resolution mechanisms for those kinds of disputes that are on the horizon?

Angela Downes (00:18:25): I think that institutions need to consider dispute resolution as part of what they are including. It is a solution-based mechanism that can really assist with these types of cases. You are pulling in someone who has the training, who has the knowledge to really handle very, very complicated manners and oftentimes these cases are extremely emotional. There are topics that can be very difficult to hear and it can provide a level of strategic planning and quite frankly, just assistance, knowing that you've got an arbitrator who is well versed, who knows how to proceed and use the policies and procedures, who knows the law and knows how to apply the correct law to the situations at hand. I think it is something that administrators and universities really should consider. It can be effective, as well as cost savings as well, because you have someone to drill down on these issues and make an informed and correct decision for the parties.

Moderator (00:20:05): Anything to add to that, Bernard?

Bernard Taylor (00:20:07): There are appropriate informal methods that schools should consider for resolving disputes. Now, with one caveat: an informal resolution is not appropriate in every case because of the power dynamics that Angela really focused upon earlier, and other issues… the emotional issues that are involved in these cases. Many of the informal methods of resolution that I am about to mention would not necessarily be appropriate in every case, but there are other methods. Mediation is one that schools can think about, where a neutral who is appropriately trained will work with both parties to help them to reach a mutually acceptable resolution. Restorative justice is another that I have run into in a couple of institutions where the approach focuses on repairing the harm caused by the misconduct and have an agreement from the parties about what they are going to try to achieve. Negotiated agreements is another where the parties agree with a facilitator to negotiate and agree to set terms in order to move forward with their lives and with their educational pursuits. Non-participatory resolutions is where the college can provide supportive measures or certain actions with the consent of one or both of the parties to provide that the party is safe and that again, both parties can continue to pursue educational pursuits. So, there are other options that are informal and schools can train their staff to be able to put these particular informal methods of ADR in place, but they are limited because they really should not be used where there are problems with the dynamics between the parties or the emotions involved in the situation that brings students to the process.

Moderator (00:22:02): Angela, Bernard, this has been such a wonderful and informative conversation. I want to wrap it up with some forward-looking questions. Bernard, we talked a lot about the changes that we have seen over the last several years. What do you think universities should be on the lookout for over the short term?

Bernard Taylor (00:22:23): I think have to monitor what's coming from the Department of Education, monitor the litigation that is ongoing (both the federal litigation and of course, the regulations within their particular states) so that they can be sure that they are on top of the issues as they are trying to resolve these disputes for the students.

Moderator (00:22:57): Absolutely. Thank you, Bernard. Angela, maybe you can share some final thoughts about what leaders can lean on as they navigate this very uncertain terrain.

Angela Downes (00:23:05): Absolutely. I think one thing that can be really helpful, because there is so much change right now, is assigning a compliance officer or someone on the legal team to really monitor ADR and Title IX shifts. That can be as simple as just having one person on your team who is really looking to see what is happening because things are changing so quickly. Also, thinking about what training opportunities for your staff. What are the things that they need to know in order to be effective in their positions and to help ensure that they are preserving community confidence in the process? And then just knowing that alternative dispute resolution…arbitration…these can be really wonderful ways to help reserve continuity, to ensure that processes are dealt with and really bringing in someone that has expertise to handle these complex matters. So, those are some things that I think can be helpful for folks as they face these challenges.

Moderator (00:24:17): Some great practical takeaways. Bernard, Angela, again, thank you so much. It has been a very informative conversation. We really appreciate your time.

Bernard Taylor (00:24:27): Thank you for the opportunity. I enjoyed it.

Angela Downes (00:24:31): Thank you so much. It was great to be with you today.

Moderator (00:24:35): You have been listening to a podcast from JAMS, the world's largest private alternative dispute resolution provider. Our guests have been Bernard Taylor, and Angela Downes of JAMS. For more information. About JAMS, please visit www.jamsadr.com. Thank you for listening to this podcast from JAMS.