What President Biden Means for the Future of Title IX
By: James J. Wilkerson
Tags: Title Ix, College, Biden, Government, Sexual Assault

What President Biden Means for the Future of Title IX

How the new administration may approach campus sexual assault.

Photo Credit: Mel Evans/ AP File

Smoke Clears

After four days of ballot counting, denied motions to stop said counting, and a handful of baseless claims of fraud, the end of 2020 has seen Joe Biden dethrone the divisive and impeached incumbent to become the 46th President of the United States of America. While Donald Trump’s most loyal followers proclaim “fix,” others clamoring for change exclaim “hallelujah.” Title IX coordinators on the other hand, wonder what Joe Biden’s accent to the Nation’s highest office will mean for the legislation meant to protect students from sexual misconduct as they pursue their education.

This past summer, Department of Education Secretary Betsy DeVos released 2,033 pages of new regulations to the 1972 Title IX of the Education Amendment. While supporters of the regulations would claim that the purpose of the new rules were to strengthen due process and protect the rights of accused students, critics were quick to point out that the new rules made institutions less accountable for the actions of their students and faculty and made the reporting process unnecessarily difficult for victims. As universities scrambled to devise a plan to operate in general during a global pandemic, they would also had the task of changing their sexual misconduct policies to become compliant with the new Title IX regulations in only a few months’ time.

While Joe Biden’s Presidential victory means Donald Trump’s eviction from 1600 Pennsylvania Ave, it also means the coming of a new education secretary and possibly a dramatic change in Title IX. Biden himself has promised to put a quick end to the Trump Administration’s new rules, which he claims aims to shame and silence survivors. But just how will a Biden presidency change the regulations?

Biden’s Title IX History

President Elect Biden is no stranger to the world of sexual assault prevention. During his time as a Delawarean senator, he would introduce the Violence Against Women Act (VAWA). Before VAWA was enacted, domestic abusers could avoid prosecution by crossing state lines and police were generally told not to intervene in domestic violence matters. Appalled by the nation’s lackadaisical attitude toward violence against women and marital rape, Biden would co-author the bill, putting in place a list of legal remedies to protect women from violence. Some of those remedies would include the federal prosecution of domestic violence and sexual assault crimes that crossed state lines, as well as requiring states to enforce protective orders from other states. The act would be signed into law in 1994, with Biden calling it his proudest moment from his career in the Senate.

During his time as Vice President, Biden along with President Obama, aggressively expanded Title IX’s reach from gender equality issues in sports to include sexual assault and the rights of transgender students. In 2011, the Office of Civil Rights issued their famous Dear Colleague letter. The letter would outline procedures and official departmental guidance under the law, telling school administrators at the collegiate and K-12 level that they were responsible for protecting women from sexual violence. The letter would also outline specific rules and procedures for how to handle claims of assault. Valerie Jarret, a senior advisor to President Obama, would call the Dear Colleague letter historic. “While Title IX had always protected students from sexual harassment, this was the first time any federal administration called sexual violence a civil rights issue”, Jarret said.

President Obama and Vice President Biden also launched It’s On Us, a national campaign aimed at ending sexual assault. The campaign would become known for hosting events at various college campuses. Over 440,000 people have signed the It’s On Us pledge to commit to creating a culture of consent, bystander intervention, and survivor support. The initiative’s reach has been felt at NCAA tournaments and the Academy Awards, with numerous celebrities and companies stepping forward in support.

In May 2016, the Obama Administration, would cite Title IX when advising schools and colleges, nationwide, that they were required to allow transgendered students to access the restroom consistent with the gender they identified with. The guidance was a clear and direct response to educators, parents, and students asking for guidance on how schools were to treat transgendered students in compliance with Title IX. The Obama Administration issued a 25 page document outlining policy suggestions which was issued alongside another Dear Colleague letter which made it clear that “under Title IX, a school must treat students consistent with their gender identity even if their education records or identification documents indicate a different sex.” This directive was seen as a huge victory for transgender students and civil rights, nationwide.

Undoing Obama

A large part of Donald Trump’s legacy as the 45th President is his hatred for his predecessor, Barack Obama. Trump was one of the loudest voices promoting birther conspiracies regarding Obama. Even after winning the White House, Trump couldn’t help but to continue to insult and criticize the former President. With such distain, many were not shocked when President Trump would seek to undo many of the policies that President Obama would enact during his eight years in office; from foreign policy to environmental issues, and of course, Obamacare. It would also come as no surprise that the Trump Administration would seek to undo Obama’s work in Title IX as well.

In 2017, Betsy DeVos announced that she planned to end the Obama Administration’s rules for investigating sexual misconduct cases on campus, stating that they “failed many students and did a disservice to everyone involved.” In September of that year, DeVos would rescind the Dear Colleague letter stating that while it was well intentioned, it deprived the due process rights of many students, both the accused and the victims. DeVos would also announce her plans to overhaul the Obama Era Title IX policies, claiming that the previous administration had “weaponized the Office of Civil Rights to work against schools and against students.”

The overhaul arrived in the summer of 2020 when the Department of Education released their divisive regulations. The regulations gave alleged perpetrators more protections, including the presumption that they are innocent throughout the disciplinary process and the right to be provided all evidence collected against them. Students would also be required to have an advisor present during live hearings to perform cross-examinations of the opposing party. While supporters applauded the regulations for their focus on due process, critics claimed that the regulations would deter students from reporting sexual misconduct as well as make it easier for schools to ignore cases. The regulations went into effect on August 14th, 2020, right on time for the 2020–2021 school year.

What’s Next?

President Elect Biden has made it clear he intends to end the 2020 Title IX regulations. But while victim advocates may want the current regulations to disappear with the swiftness of a Thanos finger snap, doing away with the DeVos regulations is a complicated process with several paths Biden could take.

Of course, Biden could release his own set of regulations, in the process reversing some of the more controversial rules in 2020 regulations. To do so however, is not a quick task. Despite President Trump promising to overhaul the Obama Era rules while on the campaign trail in 2016, DeVos’ official proposal didn’t arrive until November 2018. The rule then entered it’s 60 day comment period where it drew over 100,000 comments. The Department of Education would take 18 months to review the comments, finally releasing the final rule and putting it in effect in the summer of 2020. Although it may not take Biden the four years it took the Trump Administration to enact new regulations, it is not an overnight process.

Biden could also choose to refuse to enforce the 2020 rule. Past Presidents have taken this route in the past to avoid enforcing rules and laws they didn’t agree with (such as Trump refusing to impose sanctions against Russia through the Countering America’s Adversaries Through Sanctions Act and Obama on a number of issues regarding immigration and LBGTQ rights). Simply ignoring the Title IX regulations however, creates confusion on how institutions are to handle incidents of misconduct. Ignoring the regulations also open colleges up to lawsuits when they choose not to follow one of the enacted rules.

Congress is another path that Biden could take to change Title IX. Legislation could be passed that would either amend Title IX or require schools to use certain procedures when dealing it sexual misconduct incidents. Enacted in 1996, the Congressional Review Act (CRA) was intended to assert congressional control over agency rulemaking by establishing a special set of expedited or “fast track” legislative procedures for this purpose, primarily in the Senate. If both houses of Congress pass a joint resolution of disapproval under the CRA, the resolution would then be sent to President Biden for his signature. If the President signs the disapproval resolution, then the regulations would no longer have effect, would be treated as though they have never been in effect, and the issuing agency would be prohibited from issuing a rule that is “substantially the same” as the nullified rule. The possibility of this path will most certainly depend on which way the Senate leans after January 5th. While the Democrats have won back control of the House, two run- off elections in Georgia will determine the state of the Senate. If Democrats win those two elections, the Senate will be split down the middle; 50% Republican, 50% Democrat, with Vice President- Elect Kamala Harris holding the tie breaking vote. Simply put, a blue House, split Senate, and President in want of change is the game winning formula.

As for what Biden as President would change, Title IX experts expect a reconfiguring of the Title IX jurisdiction to include sexual misconduct that happens off campus. As only 8% of university related sexual misconduct happens on campus, DeVos’ regulations ignore the majority of sexual harassment and assault incidents. It is also thought that Biden would also change the sexual assault hearing policy that currently requires parties to utilize advocates in the cross-examination process. Numerous trauma experts have stated that subjecting survivors to a trial like cross examination will only exacerbate existing trauma. It should be noted that cross examination is a necessary part on any hearing that calls itself “fair.” That said, DeVos’ rule of only being able to use advocates to cross examine, opens the door for large inequities in the level of representation students have available.

Regardless of which path President Elect Biden takes and what he seeks to change, the Trump Administration’s Title IX regulations will be with us at least for the remainder of the 2020–21 school year. Due process advocates and victim rights activists alike, would do well to follow the news in regards to the next steps of the coming Administration. As for Title IX coordinators, now would be a good time to make sure your ATIXA membership is up to date.