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Biden Orders Review of Trump-Era Rule on Responding to Sexual Assault in Schools

By Evie Blad — March 08, 2021 3 min read
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President Joe Biden started the process Monday to reverse a controversial Trump administration rule on how schools must respond to students’ claims of sexual assault and harassment.

Biden signed an executive order that ordered the U.S. Department of Education to review the rule, which outlines obligations for K-12 schools, colleges, and universities under Title IX, the federal law that prohibits discrimination on the basis of sex. It’s part of a set of actions to mark International Women’s Day.

Former U.S. Secretary of Education Betsy DeVos introduced the new rule in May 2020 after several years of meetings with assault survivors, students who said they’d been falsely accused, advocacy groups, and educators. It replaced nonbinding guidance issued under the Obama administration that DeVos criticized for potentially infringing on the due process rights of the accused.

As a candidate, Biden pledged to rescind the Trump-era rule. As vice president, he helped lead the Obama administration’s work on the issue.

“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 discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity,” the executive order says.

The rule DeVos helped create allowed schools to shift the threshold that officials use to decide if an assault claim requires a response, from the “preponderance of evidence” standard set under the Obama administration to a “clear and convincing evidence” standard, which is a higher bar to prove claims of misconduct.

The rule defines sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity,” a stricter definition than is used in employment law. Schools will be found in violation of Title IX if they are “deliberately indifferent” to such conduct, the rule says.

Supporters of the changes said they helped preserve due process rights and set clear rules for all parties involved in an investigation.

“Due process back on the chopping block,” Samantha Harris, an attorney who has defended the DeVos Title IX rule, tweeted in response to Biden’s order Monday.

Critics of the Trump-era rule, including some survivor-advocacy groups, said the changes would make it more difficult for students to prove their claims and ensure their schools addressed their needs.

National Women’s Law Center President Fatima Goss Graves called Biden’s order a “victory for the many brave student survivors who rose up against the injustice, discrimination, and cruelty of DeVos’ Title IX rule.”

Biden’s order directs the Education Department to work with the U.S. Attorney General to review the rule within 100 days to ensure it is consistent with “governing law, including Title IX” and the policy of the Biden administration.

The order also directs Education Secretary Miguel Cardona to “issue new guidance as needed” and to “consider suspending, revising, or rescinding—or publishing for notice and comment— proposed rules suspending, revising, or rescinding” any agency rules that don’t align with the Biden administration’s approach to sex equity in education.

Because the Trump-era Title IX rule was passed through the administrative rulemaking process after public review and input, it will likely require a similar public notice and comment period to rescind or revise it.

Also Monday, Biden will sign an order to create a White House Gender Policy Council. That group will help coordinate federal gender equity efforts in areas including education.

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