Blog

Your Education Road Map

Politics K-12®

ESSA. Congress. State chiefs. School spending. Elections. Education Week reporters keep watch on education policy and politics in the nation’s capital and in the states. Read more from this blog.

Federal

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

By Evie Blad — March 08, 2021 3 min read
Image of the White House seal
  • Save to favorites
  • Print

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.

Events

English-Language Learners Webinar Helping English-Learners Through Improved Parent Outreach: Strategies That Work
Communicating with families is key to helping students thrive – and that’s become even more apparent during a pandemic that’s upended student well-being and forced constant logistical changes in schools. Educators should pay particular attention
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Mathematics Webinar
Addressing Unfinished Learning in Math: Providing Tutoring at Scale
Most states as well as the federal government have landed on tutoring as a key strategy to address unfinished learning from the pandemic. Take math, for example. Studies have found that students lost more ground
Content provided by Yup Math Tutoring
Classroom Technology Webinar Building Better Blended Learning in K-12 Schools
The pandemic and the increasing use of technology in K-12 education it prompted has added renewed energy to the blended learning movement as most students are now learning in school buildings (and will likely continue

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Federal Opinion It’s Not Just the NSBA That’s Out of Touch. There’s a Bigger Problem
Those who influence educational policy or practice would do well to care about what parents and the public actually want.
4 min read
Image shows a multi-tailed arrow hitting the bullseye of a target.
DigitalVision Vectors/Getty
Federal Dept. of Ed., Florida Continue to Battle Over Ban on School Mask Mandates
Federal officials say they’ll intervene if the Florida Dept. of Ed. goes ahead with sanctions on districts with mask mandates.
Ana Ceballos, Miami Herald
2 min read
Florida Commissioner of Education Richard Corcoran speaks alongside Florida Gov. Ron DeSantis, rear right, Fla. Sen. Manny Diaz Jr., left, state legislators, parents and educators, Tuesday, Sept. 14, 2021, at the Doral Academy Preparatory School in Doral, Fla.
Florida Commissioner of Education Richard Corcoran speaks alongside Florida Gov. Ron DeSantis, rear right, Fla. Sen. Manny Diaz Jr., left, state legislators, parents and educators, Tuesday, Sept. 14, 2021, at the Doral Academy Preparatory School in Doral, Fla.
Wilfredo Lee/AP
Federal National School Board Group's Apology for 'Domestic Terrorism' Letter May Not Quell Uproar
The National School Boards Association voices "regret" for how it sought federal aid to address threats and harassment of school officials.
4 min read
Seminole County, Fla., deputies remove parent Chris Mink of Apopka from an emergency meeting of the Seminole County School Board in Sanford, Fla., Thursday, Sept. 2, 2021. Mink, the parent of a Bear Lake Elementary School student, opposes a call for mask mandates for Seminole schools and was escorted out for shouting during the standing-room only meeting.
Deputies remove a parent from an emergency meeting of the Seminole County School Board in Sanford, Fla., after the parent, who opposes a call for mask mandates for Seminole schools, shouts during the standing-room only meeting.
Joe Burbank/Orlando Sentinel via AP
Federal 'A Snitch Line on Parents.' GOP Reps Grill AG Over Response to Threats on School Officials
Attorney General Merrick Garland said his effort is meant to address violent threats against school boards, not to stifle parents' dissent.
5 min read
LEFT: Attorney General Merrick Garland speaks during a House Judiciary Committee oversight hearing of the Department of Justice on Capitol Hill in Washington, Thursday, Oct. 21, 2021. RIGHT: Rep. Jim Jordan, R-Ohio, questions Attorney General Merrick Garland.
Attorney General Merrick Garland, left, speaks during a House Judiciary Committee oversight hearing of the U.S. Department of Justice on Capitol Hill on Thursday, questioned by Rep. Jim Jordan, R-Ohio, right, among others.
Greg Nash via AP, Andrew Harnik/AP