WASHINGTON – The Biden administration is expected to propose new rules this spring aimed at reversing the controversial Trump administration regulations governing the rights of those accused of sexual misconduct in colleges and schools.
Then-Education Secretary Betsy DeVos in 2017 set off a firestorm over new rules under Title IX that gave additional legal protections to accused offenders.
The Trump White House contended that colleges and universities “have often stacked the deck against the accused, failing to offer protections such as a presumption of innocence or adequate ability to rebut allegations.” But critics denounced the shift, saying the new policies could lead to courtroom-like hearings where accusers could be cross-examined over their credibility. Some observers said the changes would lead to scores of lawsuits.
President Joe Biden was critical of the regulations during his presidential campaign, saying that “survivors deserve to be treated with dignity and respect, and when they step forward they should be heard, not silenced,” and he promised he would put a “quick end” to it if he was elected.
Biden signed an executive order on March 8, 2021, instructing the education secretary to review existing regulations “as soon as practicable, and as appropriate and consistent with applicable law.”
The Department of Education confirmed to Capital News Service that the notice is expected in the spring and “will provide the public an opportunity to comment and will precede the issuance of a final rule.”
The new policies are also expected to create additional protections for LGBTQ+ students, according to Biden’s executive order.
Title IX, a federal civil rights law passed in 1972, prohibits sex-based discrimination in schools or educational settings that receive funding from the federal government.
In 2018, Rep. Rosa DeLauro, D-Connecticut, was one of many members of Congress to speak out against the regulations implemented by the Trump administration, saying that DeVos was “on the side of those accused rather than the victims.” DeLauro said she worried that her proposed rules would “remove policies that hold perpetrators accountable and help ensure schools are maintaining a safe environment for their students.”
Four years later, DeLauro said she is looking forward to the release of new rules.
“I am encouraged by the Biden administration’s plans to undo the previous administration’s harmful, unjust Title IX policies,” DeLauro told CNS. “Through the rulemaking process, revisions to enforcement, and updates to case processing, the Department of Education must restore critical protections for student survivors of sexual assault and sexual harassment.”
Major educational organizations including the National Education Association (NEA) have spoken out against DeVos’ regulations. In a 2018 statement, NEA President Lily Eskelsen García said that the “Trump-DeVos agenda would return schools to a time when rape, assault, and harassment were swept under the rug.”
Rep. Virginia Foxx, R-North Carolina, supported the Trump administration regulations. She argued in a statement a year ago that it took DeVos nearly three years to get the Title IX changes “right.”
Foxx opposed Biden’s executive order.
“The right to due process is bigger than partisan politics – it is a cornerstone of American democracy,” the congresswoman said in a March 2021 statement. “By overturning these stakeholder-vetted, court-supported rules, key protections for victims and the due process rights of the accused would be jeopardized.”
It’s On Us, a national sexual assault prevention organization, along with other similar groups, created the #EdActNow campaign to petition the Department of Education to issue proposed changes as early as October 2021, and until then, to not enforce the Devos rule.
However, the 2020 regulations are still in place and will be in effect until new rules are passed by the Department of Education.
Tracey Vitchers, executive director of It’s On Us, said she was upset when the Department of Education was not able to meet the October deadline. She told CNS she believes part of the reason lies with the Senate delaying the confirmation of Catherine Lhamon, narrowly confirmed last October as the Education Department’s assistant secretary for civil rights.
Lhamon served as assistant secretary under the Obama administration and worked on guidance that created protections for transgender students in schools and set out how schools should investigate Title IX claims. These were among the guidelines repealed by the Trump administration.
Vitchers said she hopes that the Biden administration puts forward a rule that takes into consideration how traumatic sexual violence can be for survivors and that will emphasize reporting and holding accountable schools that have “a culture of violence on campus.”
“I also am hopeful that them taking the amount of additional time that they have results in a stronger rule, results in a rule change that is effective, is supportive of student safety and survivor rights,” she said.
Vitchers said she has seen the harm that the existing regulations have caused. She specifically highlighted “equity issues” within the reporting process, including how schools are prevented from taking anything seen as disciplinary action on students who are accused of sexual misconduct until they have gone through the full “investigative and adjudicated process.”
“Student survivors on campus are like, ‘Well, why is so-and-so, who we know has been accused of sexual assault, still playing the football game on Saturday?’ It’s because the investigation has not been completed,” Vitchers said. “The coach’s hands are tied because prohibiting that student from competition because of the allegations of sexual assault could be interpreted as unwarranted disciplinary action that violates the accused student’s rights.”
Vichers also highlighted the inequities within the live cross-examination process at Title IX hearings that the 2020 rules laid out.
Advocacy groups and individuals sued the Department of Education over the 2020 rules, claiming that the agency violated the Administrative Procedure Act and the Equal Protection Clause of the Fifth Amendment. While the United States District Court for the District of Massachusetts upheld most of the rules put in effect under DeVos, the court invalidated one part that prohibited “decision-makers in Title IX proceedings” from “considering any ‘statement’ from a person who did not submit to cross-examination at the live hearing.”
The court called the provision “arbitrary and capricious” and underscored how respondents could schedule live hearings at inconvenient times or talk witnesses out of attending hearings and “rest easy knowing that the school could not subpoena other witnesses to appear.”
As of August 24, 2021, the Department of Education has not enforced parts of the rules that the court vacated. However, all other provisions put in place by the Trump Administration remain in effect until new rules are announced.
Backers of the Trump rules are not eager to see major changes.
The 2020 regulations brought “balance to campus proceedings” by including procedural protections for accused students, according to Joe Cohn, the legislative & policy director for the Foundation for Individual Rights in Education (FIRE). FIRE is a non-profit and non-partisan organization that advocates for student and faculty individual rights at colleges and universities.
“The 2020 regulations were extremely helpful…because prior to the regulations, there were minimal if any rights for accused students that were required by the federal government,” Cohn told CNS. “The only way to secure particular due process proceedings was to sue after the fact when basic procedural protections were skipped.”
Data on the impact of the regulations isn’t widely available yet due to the COVID-19 pandemic, according to Cohn.
“For most of 2020 and 2021 schools were remote,” Cohn said. “So data on decreased or increased reports is unreliable because there were too many other variables to really draw any conclusions from.”
Cohn said he hopes that the new regulations will constitute modest changes.
“We’re happy to work with this administration if they’re really serious about having a policy that respects the rights of all students,” he said. “We hope they go that route instead of deciding to just play ping pong with Title IX policy.”
Vitchers said she also recognized that Title IX regulations regarding sexual assault and sexual harassment have turned into a political back-and-forth. Since 2011, the regulations have been rewritten multiple times and have generated campaign promises to undo or redo specific provisions, by the administrations of Barack Obama, Trump and now Biden.
“Sexual assault does not care if you are a Democrat or Republican…so the fact that Betsy DeVos and the Trump administration turned it into this political issue that it never should have been, was really harmful,” Vitchers said. “My hope is that with the rule change, we will return to a rule that is fundamentally grounded in upholding students’ civil rights and campus safety at large because that’s what Title IX is about.”