President Joe Biden has ordered a review of a Trump-era rule on how colleges and universities handle complaints of sexual misconduct under Title IX, the federal law prohibiting sex-based discrimination at federally-funded education programs.
In an executive order signed on Monday, Biden directed the newly-confirmed Education Secretary Miguel Cardona to review the education department’s rules, policies, and regulations, and consider “suspending, revising, or rescinding” agency actions that are potentially inconsistent with the policy of the new administration.
“It is the policy of my administration that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity,” Biden’s executive order reads.
Biden specifically ordered the evaluation of Title IX changes implemented last year by Trump’s Education Secretary Betsy DeVos, who revised the Obama administration’s guidelines on Title IX accusations. According to DeVos, the original federal guidance encouraged colleges and universities to set up what she called “kangaroo courts,” which unfairly favored the accusers and deprived accused individuals of their basic due process protections.
The Trump-era rule (pdf), which went into effect in August 2020, limited the cases colleges need to investigate by adopting a narrower definition of sexual harassment. It also ensured that alleged perpetrators and victims had the equal right to submit, cross-examine, and challenge all evidence at a live hearing, where they can choose to be represented by a lawyer or adviser to avoid face-to-face questioning.
In her final day as education secretary, DeVos left a memorandum (pdf) that maintained that “sex” under Title IX should only be interpreted to mean “biological sex, male and female”—an apparent conflict with Biden administration’s effort to expand Title IX to encompass “sexual orientation or gender identity.”
The Biden order came a few days after 115 House Democrats pushed Cardona to prioritize reversing the Title IX rule by his predecessor, arguing that the DeVos rule “gut protections for survivors of sexual violence and overburden already-strained schools struggling amid a global pandemic.”
“Survivors of sexual violence deserve justice, dignity, safety and healing,” the Democratic lawmakers wrote in their letter (pdf) to Cardona the day after he was confirmed as education secretary. “Yet, Secretary DeVos’ rule turns back the clock and erodes hard-fought protections and rights for victims with a ‘boys will be boys’ approach to sexual assault on college campuses.”