Trump-Era Title IX Regulations Examined and Gender Policy Council Established
On Monday, March 8, 2021, International Women’s Day, President Biden began his effort to take apart the Trump-era rules on sexual misconduct that favored students accused of assault. He ordered the Education Department to review all policies on violence, sex, and gender discrimination in schools. Biden directed the agency to “consider suspending, revising or rescinding” any policies that don’t protect students.
During his announcements, Biden promised an “all hands on deck effort” to combat sexual assault in the military as well, and appointed two women, General Jacqueline D. Van Ovost and Lieutenant General Laura J Richardson, as four-star generals. He described sexual assault in the ranks of the military as a “threat to our national security.”
Biden’s fix comes in two parts. One executive order directs the new Department of Education secretary to review policies, and the other creates a White House council, called the Gender Policy Council, that will be gender-focused. The name was chosen intentionally to include people of all genders. A White House official said, “There will be a focus on women and girls, but the choice of the name of the council is really intentional.” The official said that gender discrimination can happen to “people of all genders.”
Nearly every cabinet secretary will be required to participate in the council, which will report directly to the president.
As a former Senator, Biden is one of the creators of the Violence Against Women Act and has been working on these issues for more than ten years. The White House policy council will focus on combating sexual harassment, decreasing gender wage and wealth gaps, addressing structural barriers to women’s participation in the workforce, and addressing caregiving issues that fall largely to women, among other things.
When Obama was in office, his administration provided guidance to educational institutions for the protection of accusers. Critics complained that the guidance offered little due process or protection for those accused of sexual harassment, assault, or other misconduct on campus, regardless of whether they were students or faculty. Trump’s administration, through then Education Secretary Betsy DeVos, obliviated the Obama guidance and created novel regulations on sexual misconduct.
The Trump-era rules limited complaints that schools were required to investigate to those filed through a formal process and brought to authorities with the ability to take corrective action and, not, for example, to residential advisers. DeVos’s rules adopted the Supreme Court’s sexual harassment definition: “unwelcome conduct that is … severe, pervasive and objectively offensive.” The rules also required colleges to hold live hearings where the credibility of accusers and accused could be challenged through cross-examination.
Additionally, the Trump-era rules only required schools to investigate events that occurred within their programs or activities, and not those in apartments affiliated with a university. They also had the freedom to select whether they would adhere to the “preponderance of evidence” or “clear and convincing evidence” evidentiary standard.
Though Biden’s review has begun, it is unclear whether he will return the rules to the Obama approach or find some middle ground.
Terry W. Hartle, a senior vice president of the American Council on Education, said, “We’re looking for a process that does not turn us into courts, that allows us to treat both sides fairly and equally, and does not attempt to micromanage campus proceedings.” The American Council on Education represents 1,700 college and university presidents and higher education executives.
Title IX has become a battleground for wars over education, gender, and sex.
When he was vice president, Biden was instrumental in the aggressive investigations of schools that mishandled sexual assault complaints. These schools were threatened with funding cuts. Trump’s rules, proposed by DeVos in 2018, wiped out those investigations and threats and solidified procedures that shored up the rights of accused students.
Since DeVos used the formal regulatory process (a draft rule, comment period, and final rule), Miguel A. Cardona, Biden’s Education Secretary, must go through another regulatory procedure to replace her rules. That process will take more than a year. It took DeVos three years to reverse the Obama rules.
The Trump rules have been in place since August. Lawsuits have attempted to overturn them, and one tried to delay them because of the coronavirus, but all have failed.
Josh Richards, a lawyer adviser to universities about Title IX issues, said, “I don’t think it’s necessary to go to the extent that the DeVos era rules went in importing court-style legal rules to these processes in order to provide a fair process to everyone involved.”
Senior counsel at the National Women’s Law Center, Shiwali Patel, said of the Biden initiative, “This is an important step. The Title IX rules changes that took place under the Trump administration are incredibly harmful, and they’re still in effect.”
R. Shep Melnick, a Boston College politics professor and author of “The Transformation of Title IX: Regulating Gender Equality in Education” said, “It’s not to say that they couldn’t loosen some of the Trump-era rules. But if they try to go back to the Obama-era rules, I’m pretty sure that they would lose in court.”
Jennifer Klein, together with Julissa Reynoso, chief of staff to Jill Biden, will lead the re-established White House Gender Policy Council. Klein said, “The policy of this administration is that every individual, every student, is entitled to a free—a fair education free of sexual violence, and that people—all involved—have access to a fair process.” Klein was an adviser to Hillary Clinton when she was the first lady.
Although the Obama-era rules were praised for altering the college campus practice of sweeping sexual assault claims away and for extending protections from obstacles that had long prevented reporting sexual assault, they had opponents. Despite the Obama-rules’ broader definition for what qualified as sexual harassment, requiring schools to use the lowest evidentiary standards, and discouraging cross-examination, school administrators and due-process activists claimed they were, in essence, an illegal edict that encouraged schools to err in favor of the complainants.
The DeVos rules apply not only to colleges but to all primary and secondary schools that receive federal funding. The Trump administration reviewed 120,000 comments and made several changes that were demanded by victims’ rights groups. Among those changes were “rape shield” protections, mandating “supportive measures” for victims, and a dating violence definition.
Of the DeVos rules, Joe Cohn, Foundation for Individual Rights in Education legislative and policy director, said they were “a good-faith effort to try to make this process work for all students.”
He said, “There are students who are raped on college campuses, and there are students who are wrongly accused, and we should not be choosing between which of those groups we wish to give justice. The one-sided rhetoric doesn’t lead us to have confidence at this point that the rights of the accused will seriously be taken into account.”
At the time the Trump administration’s rules were proposed, Biden said they would “return us to the days when schools swept rape and assault under the rug, and survivors were shamed into silence.”
According to victims’ rights advocates, the chilling effect they feared from the DeVos rules came to pass. Even during the pandemic, colleges have struggled to carry out the rules, which are costly and burdensome.
Sage Carson, manager of survivor advocacy group Know Your IX, said of the DeVos rules, “We’re really seeing it used as a way for schools to confuse and manipulate survivors, which is really what we’ve seen for decades. Now it’s this really scary process on the books, and it gives the schools a way to say, ‘Do you really want to go through this?’”
The Biden administration review of Title IX policies comes concurrently with some states introducing their own legislation to prevent transgender female athletes from competing on sports teams that don’t match their birth gender. Professor Melnick noted that the Trump administration had revoked the Obama-era guidance about the rights of transgender students, but no regulation was issued.
Melnick said, “The Biden administration could simply reinstate the previous policy which is that in anything that is sex segregated, schools should use gender identification.”
In February, the Biden administration withdrew its support for a Trump-era lawsuit intended to block transgender students from taking part in girls’ high school sports. The Trump administration’s decision to withhold federal funding from Connecticut schools that allowed transgender girls and women to compete on sports teams with biological girls and women was reversed by the Education Department’s Office for Civil Rights.
Klein said, “We have the tools that we have, which are federal laws and the bully pulpit and clarity about our policy and values.”
On March 8, 2021, 278 students and survivors wrote to Biden asking for administrative changes for better protection. They summed up with this:
“President Biden, you have the power to return Title IX to its intended purpose: to keep survivors in school and ensure that every student has the right to an education free from gender violence. Secretary DeVos’s rule drastically undermined this intended purpose. We refused to stay quiet when the Trump administration attempted to silence us, and we will continue to use our voices to demand your administration keep your commitment to prioritizing comprehensive, meaningful protections for the survivors under Title IX. We are counting on your Department of Education to hear our demands, take action, and provide us with the protections we deserve.”
