Rethinking Title IX

President Biden on Monday ordered Education Secretary Miguel Cardona to re-examine his predecessor Betsy DeVos’s controversial rule strengthening the rights of those accused of sexual harassment or assault on the nation's campuses. And, raising the hopes of the rule's critics, Biden said in his order that Cardona should consider “suspending, revising, or rescinding” it.

To mark International Women’s Day, Biden signed an executive order spelling out that it’s his administration’s policy “that all students should be guaranteed an educational environment free from discrimination on the basis of sex.” And discrimination, he said, includes sexual harassment and violence, as well as discrimination based on sexual orientation or gender identity.

The order directed Cardona to review within 100 days the Education Department’s regulations and policies to make sure they comply with the antidiscrimination policy. Biden specifically mentioned the department’s policy on Title IX of the Education Amendments of 1972.

DeVos last May reversed the Obama administration’s policies on campus sexual assault and harassment, angering women’s and civil rights groups but bringing praise from those who believe the rights of the accused are often trampled upon by institutions.

Saying her rule would balance campuses’ response to allegations of harassment and abuse that have “often stacked the deck against the accused,” DeVos required colleges to hold live hearings and allow for the cross-examination of those alleging misconduct. Women’s rights groups said it would discourage victims from coming forward.

DeVos’s rule, among other things, also allowed colleges and universities to raise the bar on deciding whether sexual misconduct took place to a “clear and convincing” standard instead of whether there was a “preponderance of evidence” against the accused. The rule also allowed institutions to ignore allegations of misconduct that happened off campus, except at fraternities and sororities or at events that are part of a university program.

DeVos took the stance after critics said guidance issued by the Obama administration in 2011 and 2014 was skewed against the accused. The Obama administration required schools to adopt the lower “preponderance of evidence” standard, discouraged cross-examinations and said that any due process protections for the accused should not delay getting victims justice.

The move Monday was expected. Biden had criticized DeVos’s rule on his campaign website last year, saying it had “rolled back the clock and given colleges a green light to ignore sexual violence and strip survivors of their civil rights.”

Biden had as vice president led Obama’s It’s On Us campaign against college sexual assault. Famously, Biden said at a White House event against campus sexual assault in 2014, “If a man raised his hand to a woman, you had the job to kick the living crap out of him.”

It was unclear how quickly the Biden administration could make any changes. Brett Sokolow, president of the Association of Title IX Administrators, said the Education Department’s typical arduous rule-making process could take a year or two and any new rule might not go into effect until 2024.

The department could also go to the courts and seek a stay of the DeVos rule, or choose not to fight any of three lawsuits challenging the rule, he said. Earlier this month, 115 Democrats in the House, including Jackie Speier, from California, wrote Cardona urging him to seek a stay of the previous administration’s rule. At the same time, the Democratic lawmakers said Cardona should issue an interim guidance restoring key parts of the Obama administration’s guidance.

“Every day that Secretary DeVos’ Title IX rule is on the books is a day that survivors are denied their civil rights,” Speier said in a statement Monday applauding the executive order. “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.”

The Education Department could also announce that it will not be enforcing DeVos’s rule, Sokolow said. Regardless of whether that happens, Andrew Miltenberg, a lawyer who represents students accused of misconduct, fears colleges and universities will read Biden’s policy as a direction to emphasize the rights of those alleging misconduct over those of the accused.

“To me the actual wording of the regulations concerns me less than the predisposition of Title IX offices to see an alleged victim’s rights as a paramount,” Miltenberg said.

But Sokolow doubted that will happen. Even if the Education Department says it would not enforce it, DeVos’s rule would still have the force of law. If they do not continue following it, colleges and universities could face civil suits.

All this will create confusion for colleges and universities, he said.

“We’ve seen such uncertainty before, from 2017 to 2020, as the previous administration completed the regulatory process. Then, the education field was left in limbo, unclear of what to do and uncertain of when new rules would take effect,” Sokolow said.

Further complicating matters is that things have changed since the Obama administration issued its rules. “It’s not as simple as, ‘put the 2011 rules back on the books and call it good,’” said Sage Carson, manager of the victims’ advocacy group Know Your IX.

She said, for instance, that those alleging misconduct are more often facing retaliatory lawsuits by the accused than during the Obama administration. It’s unclear how to deal with that, she said. But in a letter to Biden published in Teen Vogue on Monday, 278 college students urged Biden to act quickly to repeal DeVos’s rule, but also urged the administration to talk to survivors of campus sexual misconduct to figure out what should be included in any new rule.

Even the most contested item in the DeVos regulations -- the cross-examination requirement -- has been backed by several appeals court decisions and will be applicable to colleges in those judicial circuits even if the Biden administration stops enforcing the regulations.

Meanwhile, Biden's executive order drew fire from supporters of DeVos's rule.

“The right to due process is bigger than partisan politics -- it is a cornerstone of American democracy. By overturning these stakeholder-vetted, court-supported rules, key protections for victims and the due process rights of the accused would be jeopardized," said Representative Virginia Foxx, of North Carolina, the top Republican on the House education committee. "Perhaps President Biden has forgotten that the presumption of innocence has protected many liberal elites from sexual assault allegations. College students should be afforded the same rights and protections as Democrat politicians.”

In addition to dealing with the debate over sexual misconduct, Sokolow said that Biden’s executive order has other implications. Biden’s policy protecting students from discrimination likely signals that the administration will announce that Title IX, which prohibits sex discrimination at federally funded institutions, protects the rights of students based on sexual orientation and gender identity.

Shortly before the Trump administration left office in January, the Education Department’s Office of the General Counsel published a memorandum saying LGBTQ students are not protected under Title IX.

The statement came after a landmark U.S. Supreme Court ruling in June raised questions about how Title IX applies to LGBTQ students. The ruling in Bostock v. Clayton County cemented protections for LGBTQ workers under Title VII of the Civil Rights Act of 1964, the law that prohibits workplace discrimination based on race, sex, religion or national origin. The Supreme Court determined that “sex” under Title VII should be interpreted to include LGBTQ people when they face discrimination based on their sexual orientation or gender identity.

In addition, Biden on Monday also signed an second executive order creating a Gender Policy Council in the White House to examine issues like combating systemic bias and discrimination against women, as well as promoting equity and opportunity in education. That could have implications for higher education, said Beth Stein, senior adviser at the Institute for College Access and Success.

It could mean the administration in forming proposals will look at ways to increase equity for women. In designing a proposal to eliminate tuition at public colleges, for example, the administration could build in requirements to enroll women or provide childcare, she said.