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Title IX Update

Biden begins the effort to remake the Trump/DeVos Title IX rules through an executive order that toughens protections against sexual assault and harassment, and signals a start over to implement a new Title IX regulation.

By Sandra Guy, SWE Contributor

The Biden administration faces high hurdles and tricky legal consequences in reversing former President Trump’s controversial new Title IX rules because the revisions are now embedded in a formal regulation and key aspects have been upheld in court rulings, experts say.

But President Biden signaled with an executive order on March 8 — International Women’s Day — that he likely will seek to rewrite Title IX to once again bolster protections for sexual assault and harassment victims.

The executive order calls on the U.S. Department of Education and Biden’s newly confirmed Education Secretary Miguel Cardona, Ed.D., to consider “suspending, revising, or rescinding” any agency actions that violate the Biden administration’s policy to “[guarantee] an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.”

Most significantly, the order appears to show that seeking to write an entirely new Title IX as law, rather than merely a guideline, is at hand. That’s because the order directs the education secretary to consider “publishing for notice and comment proposed rules suspending, revising, or rescinding — those agency actions that are inconsistent with the [Biden administration’s anti-discrimination] policy.”

The executive order also directs the education secretary to “consider taking additional enforcement actions … as well as legal prohibitions on sex discrimination in the form of sexual harassment, which encompasses sexual violence, to the fullest extent permissible under law.”

The executive order also directs the education secretary to “consider taking additional enforcement actions … as well as legal prohibitions on sex discrimination in the form of sexual harassment, which encompasses sexual violence, to the fullest extent permissible under law.”

Title IX is the federal civil rights law that prohibits discrimination on the basis of sex in any education program or activity that receives federal funding. Discrimination on the basis of sex can include rape, sexual assault, or other types of sexual harassment.

“[The Trump administration’s overhaul] was the first full rulemaking procedure for Title IX since 1975, and it was backed by a 2,000-page justification,” said R. Shep Melnick, Ph.D., the Thomas O’Neill Professor of American Politics at Boston College and author of The Transformation of Title IX: Regulating Gender Equality in Education.

That means if the Biden administration wants to substantively change the Trump administration’s rewrite of Title IX, which took effect Aug. 14, 2020, it would have to start the lengthy rulemaking process all over again. That process would be subject to judicial review, would have an uncertain outcome, and could take years.

“The Biden-Harris administration is committed to ensuring nondiscriminatory access to education for all,” a U.S. Department of Education spokesperson said in a statement. “This includes combatting discrimination on the basis of gender identity or sexual orientation and ensuring proper protections for survivors of sexual violence.

“Our new leadership team is currently reviewing the Title IX regulation and other existing rules, guidance, and publications to understand the positions the agency has previously taken and identify areas where we may want to take a different posture,” the statement concluded.

Opponents of the Title IX rewrite led by Trump’s U.S. Secretary of Education Betsy DeVos say they hold out hope that President Biden, who led the Obama administration’s campaign to prevent sexual assault on college and university campuses, will keep his campaign pledge to do whatever it takes — and for as long as it takes — to reverse the existing Title IX law.

They see positive signs already in these moves:

  • President Biden on his first day in office signed an executive order “fully implementing” a 6–3 U.S. Supreme Court decision from June 15, 2020, Bostock v. Clayton County, Georgia, affirming that the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 extends to discrimination based on sexual orientation and gender identity. The order mentioned Title IX explicitly: “The Supreme Court held that Title VII’s prohibition on discrimination ‘because of … sex’ covers discrimination on the basis of gender identity and sexual orientation. Under Bostock’s reasoning, laws that prohibit sex discrimination — including Title IX of the Education Amendments of 1972, as amended … along with their respective implementing regulations — prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.”
  • President Biden’s appointment of Suzanne Goldberg, J.D., a prominent law professor who specializes in sexuality and gender law, to serve as deputy assistant secretary for strategic operations and outreach at the Office for Civil Rights at the U.S. Department of Education. Goldberg started her legal career as a staff lawyer with Lambda Legal, working on a variety of LGBTQA+ law reform cases and legislative and public policy initiatives. Her appointment is not without controversy, however, as her tenure as Columbia University’s executive vice president for student life and special advisor to the university president on sexual assault prevention and response included high-profile cases that pitted victims against university policy.
  • The Biden administration’s withdrawal on Feb. 23 of Trump’s Education Department’s previous support of a lawsuit in Connecticut that seeks to ban transgender athletes from competing in girls high school sports.

Lawsuits challenge controversial provisions

Opponents of Trump’s Title IX regulation also await rulings on lawsuits that aim to overturn key provisions of Trump’s Title IX.

One lawsuit was filed in June 2020 by Democratic attorneys general from 17 states and the District of Columbia, attempting to block the Title IX regulations.

Another lawsuit was filed in June 2020 by the National Women’s Law Center (NWLC), along with co-counsel Morrison & Foerster LLP and Diane Rosenfeld, J.D., of Harvard Law School in her individual capacity. The latter lawsuit is filed on behalf of several students, all of whom experienced sexual harassment or assault, in elementary school or college, and four organizations that advocate for student survivors: Equal Rights Advocates, Victim Rights Law Center, Legal Voice, and the Chicago Alliance Against Sexual Exploitation.

“In the interim, we hope that the Biden administration will take quick action to address the chaos caused by the DeVos Title IX rule and conduct a listening tour of student survivors to hear how the rule, COVID, and remote learning have impacted them,” said Shiwali Patel, J.D., director of justice for student survivors and senior counsel for NWLC. “We need to hear from and listen to the students most impacted by this situation.”

After a November 2020 court hearing in the NWLC lawsuit, Patel said in a statement: “A decisive majority just voted for progress and rejected President Trump and his administration, including Betsy DeVos. But for many students and survivors, ending this rule can’t wait.

“Schools should be environments where all students can feel safe and supported, not sources of more trauma and neglect,” she said. “Students, including our clients, who are already suffering from Trump’s reckless approach to the pandemic, should not be subjected to this rule for a day longer. It must be struck down immediately so we can start re-envisioning schools as environments for learning and thriving.”

“In the interim, we hope that the Biden administration will take quick action to address the chaos caused by the DeVos Title IX rule and conduct a listening tour of student survivors to hear how the rule, COVID, and remote learning have impacted them. We need to hear from and listen to the students most impacted by this situation.”

– Shiwali Patel, J.D., director of justice for student survivors and senior counsel, National Women’s Law Center

In a March 8 blog post, Goldberg wrote, “In [the U.S. Department of Education’s Office of Civil Rights], we recognize that many students, parents, faculty, school staff and administrators and other members of the public have important insights to share, including about the terrible losses caused by sexual harassment and violence in educational environments, the need for students who have experienced sexual harassment and violence to have appropriate supports available to them, and the importance of prompt, effective and fair school-based processes to address incidents when they occur. Over time, we will create opportunities for all who are interested to share their views.”

Opponents have lambasted Trump’s Title IX overhaul for, among other things, requiring sexual assault or abuse survivors — overwhelmingly women — on college campuses and the students they’ve accused of abusing them — primarily men — to go through a live, face-to-face hearing.

 Both parties can refuse to be cross-examined at such a hearing. But that means the decision-maker at the hearing, such as a hearing officer, cannot rely on any statement of that party, even statements made in the formal complaint or earlier during the investigation, or an admission made in a text message.

Opponents also argued that Trump’s revised Title IX requires K-12 schools, colleges, and universities to ignore sexual harassment until the harassment gets so bad, a student wouldn’t feel safe to attend class or would drop out of school altogether.

Other controversial provisions of Trump’s revised Title IX include:

  • Sexual assault or abuse survivors or Title IX coordinators must produce and sign a formal document about the assault for the school to begin an investigation.
  • Schools should begin a hearing process with an “innocent until proven guilty” mentality toward the accused.
  • Schools are encouraged to adopt a “clear and convincing” standard of evidence — a higher bar than the previous Obama-era standard, which cited “preponderance of the evidence.”
  • COVID conditions have left students confused about their rights and unsure whether any harassment they endure during remote learning qualifies as harassment.

A range of options

One of the options the Biden administration could implement right away is to give schools greater discretion while maintaining their legal protections.

Dr. Melnick said the Biden administration could issue guidance to let school administrators use greater discretion to provide more protection for people who say they’ve been sexually abused or harassed. But any guidance must take care to allow due-process protections, including live hearings and some form of cross-examination, which some courts have held can be conducted indirectly or directly by a neutral hearing officer.

“Even if President Biden’s Department of Education went easy on enforcement, schools would realize they could be sued if they don’t provide these protections.”

– R. Shep Melnick, Ph.D., the Thomas O’Neill Professor of American Politics at Boston College

Another option is to encourage schools to act on their own, or provide guidance on expanding their honor code jurisdiction. College and university administrators already have the authority to expand the reach of their harassment policies to include study abroad and off-campus housing and gathering places such as bars. “They can say, ‘It’s a violation of our honor code, not a Title IX violation,’” if abuse or harassment occurs in those circumstances, Dr. Melnick said.

Rather than try to amend Title IX and open it up to potential setbacks or challenges to protections across the board, including for athletes and transgender students, the Biden administration might seek to add requirements to other federal laws, Dr. Melnick said.

One would be the Violence Against Women Act, or Title IV of the Violent Crime Control and Law Enforcement Act, which President Bill Clinton signed in 1994 and which provided $1.6 billion toward investigating and prosecuting violent crimes against women, imposed automatic and mandatory restitution of those convicted, and allowed civil redress in cases prosecutors chose not to pursue.

The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act is a consumer protection law that aims to provide transparency around campus crime policy and statistics. It also requires campuses to have investigative and resolution procedures addressing sexual assault, dating violence, domestic violence, and stalking that are “prompt, fair, and impartial.”

Yet another option is found in President Biden’s new Gender Policy Council and other priorities that could send strong signals to schools of the Biden administration’s commitment to the rights of women and the LGBTQA+ community.

These federal laws may be amended by a simple majority in both houses of Congress. “If [the Biden administration] can get 50 votes in the U.S. Senate and a majority in the U.S. House, that would be a good strategy for them [to amend one or both of those laws],” Dr. Melnick said.

Yet another option is found in President Biden’s new Gender Policy Council and other priorities that could send strong signals to schools of the Biden administration’s commitment to the rights of women and the LGBTQA+ community. The Gender Policy Council, which Biden officially established in a separate executive order on March 8, will report directly to the president, making it the most powerful entity of its kind. It will seek to advance gender equality and equity throughout government, in both domestic and foreign policy.

A separate news story posted on nonprofit news site The 19th on Feb. 19 reported that Biden is considering a gender-neutral X marker option for people who are transgender or non-binary to use in passports and other federal IDs.

“President Biden remains committed to advancing state and federal efforts that allow transgender and non-binary Americans to update their identification documents to accurately reflect their gender identity, especially as transgender and non-binary people continue to face harassment or are denied access to services because their identifications documents don’t affirm their identity,” the publication reported.

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