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Biden Team: Schools Can Go Beyond Trump Rules in Response to Alleged Sexual Misconduct

By Andrew Ujifusa — July 20, 2021 3 min read
Symbols of gender.

Schools can respond to allegations of sexual misconduct in ways that “go beyond” the Title IX regulations adopted by the Trump administration last year, as long as those additional steps don’t conflict with the Trump-era rules or Title IX itself, the U.S. Department of Education stated in new guidance to schools.

The Education Department’s interpretation of the Trump-era rules, released July 20, makes it clear that those 2020 regulations represent “minimum steps” for educators. It also says that while schools must presume that a person alleged to have committed the misconduct isn’t responsible, schools “should never assume a complainant of sexual harassment is lying or that the alleged harassment did not occur.”

In addition, the guidance spells out that while elementary and secondary schools are not required to conduct live hearings with cross examinations of different parties, elementary and secondary schools must respond any time that any school employee “has notice that sexual harassment might have occurred.” And schools may respond to allegations of sexual misconduct that doesn’t meet the definition of sexual harassment spelled out in the 2020 regulations.

The department’s “Questions and Answers on the Title IX Regulations on Sexual Harassment” comes as the administration reviews rules for Title IX of the Education Amendments of 1972, following an executive order from President Joe Biden.

The review could lead to significant shifts in policies addressing how both K-12 schools and institutions of higher education must respond to allegations of sexual assault and harassment, as well as how they must protect LGBTQ students from discrimination and ensure students are treated equally irrespective of their gender.

The Biden administration held a hearing on Title IX enforcement last month. The education department shared transcripts of those hearings on July 20.

Political division around Title IX and sexual assault allegations has grown

The issue of how schools must respond to sexual-misconduct allegations under Title IX has become a prominent national political issue in recent years, as experts and others debated how to weigh the rights of the accusers and the accused, and what threshold of evidence officials should use when determining guilt.

In 2017, former education secretary Betsy DeVos revoked Obama administration guidance for Title IX enforcement, and said the Obama-era guidance threatened the due-process rights of those accused of misconduct. However, victims’ rights groups and others said DeVos’ decision put people at risk and could lead to less-aggressive Title IX enforcement.

After public input, DeVos issued new Title IX regulations last year. Among other things, DeVos’ rules said education officials could use a higher bar for determining if there is sufficient evidence of misconduct to require a response. Again, the new rules provoked different responses. Some said DeVos had taken appropriate steps to ensure fair safeguards for the accused, while others said the rules could make it more difficult for accusers to prove their claims and make it easier for schools to cover up incidents of misconduct.

Although much of the controversy around Title IX in the last several years has revolved around colleges and universities, the situation has affected K-12 educators as well. The tug of war over Title IX has fatigued school officials as well as students who feel caught in the middle. There were also concerns about the practicality of implementing the new rules in the midst of the coronavirus pandemic.

The Title IX rules adopted by DeVos say K-12 schools must respond when they have “actual knowledge” of a complaint of sexual harassment; the Obama-era guidance said schools must respond to incidents they “reasonably should” have been aware of.

The new guidance from the Biden administration says schools may respond to alleged sexual misconduct, even if the misconduct does not meet the definition of sexual harassment in the 2020 rules. It also highlights how last year’s Title IX rules addressed off-campus settings where the school exercises “substantial control” over the respondent and the context, such as a school field trip.

The Trump administration unveiled the Title IX regulations in May 2020 and they went into effect on Aug. 14, 2020, but the department’s new guidance stresses that the rules are not retroactive.

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