The Biden Administration Is Making Progress On Restoring Students’ Title IX Rights

On March 8, The Biden administration took an important step toward changing how schools will handle sexual assault, harassment, and misconduct cases. President Biden instructed the Education Department to carry out an extensive review of all policies regarding gender and sex discrimination and violence in schools to upend protections put in place by the Trump administration that skewed proceedings following accusations of sexual violence and misconduct in the accused's favor. Biden also enacted two executive orders; the first prompted Secretary of Education Miguel Cardona to begin the review, while the second established a gender-focused White House policy council.

Biden's first executive order plainly states that "all students should be guaranteed an educational environment free from discrimination on the basis of sex." That sentiment is at the very heart of Title IX, a law passed in 1972 that prohibits sex-based discrimination in federally funded schools, upon which the regulations were founded. But it's questionable whether former Secretary of Education Betsy DeVos' new Title IX rules, implemented just six months ago, honored that sentiment. The DeVos policies require misconduct to meet a "clear and convincing" standard (which involved a higher standard of evidence), excuse schools from responding to off-campus incidents, and taper the definition of sexual misconduct so that schools can respond only to the incidents they deem the most severe. The current regulations also require live hearings and cross-examinations, which give procedural advantages to accused students and faculty members while discouraging victims from coming forward. President Biden condemned DeVos' rules, saying they give "colleges a green light to ignore sexual violence and strip survivors of their rights."

Sage Carson, manager of Know Your IX, an organization empowering students to stop sexual violence, told NPR that the DeVos policy "goes beyond what is required. These were special rights just for students accused of sexual misconduct that stacked the decks against student survivors." She added that "right now, what we're hearing from survivors is 'I don't want to go through that process, the process is very scary to me, and those rules are very intimidating."

Biden's second executive action, the formation of a Gender Policy Council, would ensure that "every individual, every student is entitled to a fair education — free of sexual violence — and that all involved have access to a fair process." Jennifer Klein, co-chair and executive director of the council, told reporters at a White House briefing this past week that the policy council is a direct response to Trump having disbanded the White House Council on Women and Girls, a council specifically created to focus on women's issues during the Obama administration.

Earlier this month, 115 House Democrats wrote to Secretary of Education Cardona, urging that he issue guidance restoring key parts of the Obama administration's policies regarding Title IX protections and procedures. Chief among these voices was California's Jackie Speier, who, following the announcement of Biden's executive order on Monday, stated that "every day that Secretary DeVos' Title IX rule is on the books is a day that survivors are denied their civil rights." She added that "to impose bizarre rules around the location where a student must be assaulted, whom they must report to, and how much they must suffer in order to avail themselves of their rights is contrary to the letter and spirit of Title IX."

However, some have argued that the Obama administration's guidance for schools concerning gendered and sexual violence leaned toward favoring accusers, offering few protections or due process for students or faculty members accused of sexual assault, harassment, or misconduct. It remains to be seen whether the Biden administration's review of Title IX policies will ultimately resemble policies from the Obama era or if the current White House will strike a middle ground between the last two administrations.

Sage Carson also told NPR that "it's not as simple as" just putting the 2011 rules back in place, citing new challenges for accusers, such as an increase in the likelihood of retaliatory lawsuits against them. Even the most admonished DeVos regulations, like cross-examinations, have been backed by multiple appeals court decisions, meaning certain procedures will still be carried out by colleges in certain judicial circuits whether or not the Biden administration rolls back DeVos' regulations.

Ultimately, Biden's executive order won't imminently undo the current regulations. The order calls for a 100-day review to "consider suspending, revising or rescinding" Trump administration rules that are deemed inconsistent with the policies under the current Biden-Harris White House, and even after that period, action won't be immediate. It took DeVos three years to reverse the Obama administration's regulations, and it could similarly take Biden years to roll back and replace the current regulations.

In the meantime, multiple lawsuits have been levied against the current hold-over regulations. Lawsuits from a group of high school students in California and the National Women's Law Center are currently taking aim at the DeVos policies while activists are simultaneously urging Biden to issue a directive that would suspend parts of the policies that are currently being challenged in court. The same day the executive order was announced, Teen Vogue published an open letter signed by 278 college students imploring Biden to repeal DeVos's policies as quickly as possible, as well as to communicate with survivors of campus sexual misconduct to have a better understanding of what should be included in the new policies.