The Biden administration has issued new guidance on handling campus sexual harassment complaints amid its efforts to roll back changes that the Trump administration made to the way Title IX is administered.
Former U.S. Secretary of Education Betsy DeVos touted the 2020 changes to the Title IX rule, which increased protections for students accused of harassment or assault, as one of her most significant accomplishments. In a farewell letter to Congress, she urged legislators to uphold the ruling.
In April, the Department of Education began the process of unraveling the 2020 changes, announcing a comprehensive review, including a 5-day public hearing in early June in anticipation of beginning the formal rulemaking process that will culminate in May 2022.
Although the 2020 rule will remain in effect in the interim, the department provided a Q&A document on how to interpret and implement it in July 2021. The 67-page document emphasizes that the 2020 rule sets an institution's minimum responsibilities, but they have the authority to go beyond it. It also clarifies the legitimacy of informal reporting pathways.
[Read More: A New, Higher Bar for Title IX Complaints]
The DeVos’ definition of sexual harassment only includes conduct “so severe, pervasive, and objectively offensive that it denies a person equal educational access.” The July 2021 guidance notes that this definition designates what schools are required to investigate, but they have the authority to investigate instances that fall outside it. Ultimately, the Obama-era definition of “unwelcome conduct of a sexual nature” goes further and should be restored.
Under the DeVos rule, Title IX resources and procedures only kick in when a school has been formally notified through their Title IX coordinator. By contrast, earlier guidance allowed for informal notification from members of the local community, social networking sites, or the media. Reestablishing these less formal reporting pathways would enable schools and colleges to support students by enacting housing changes, no-contact orders and other protective measures and would trigger their response obligation.
The July 2021 guidance indicates institutions can be formally notified through other designated staff. And the guidance reestablishes other reporting pathways like through a newspaper article or an anonymous report. The next rule should require institutions designate additional staff and informal pathways that can trigger an investigation.
Biden should also move quickly to reaffirm Title IX’s responsibility to protect LGBTQ students. In June 2020, the U.S. Supreme Court issued a ruling that redefined “sex” to include LGBTQ people under Title VII of the Civil Rights Act of 1964. Despite this, and on DeVos’ last day in office, the U.S. Department of Education issued guidance saying Title IX protections do not extend to LGBTQ students.
On Biden's first day in office, the new president issued an “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation” which, among other things, reaffirms that the Supreme Court ruling applies to Title IX. While the Biden Justice Department also recently issued a memo arguing the Supreme Court decision also applies to Title IX, the new rule should codify it.
In the latest version of the rule, the Biden Administration should provide best practices for virtual proceedings. The Education Department’s Office for Civil Rights released a Q&A document reaffirming schools’ responsibility to comply with Title IX during virtual learning in May 2020 and again in May 2021. Biden’s guidance should continue the option for students to choose informal resolutions instead of formal proceedings required by DeVos’s rule and build on her guidance by providing best practices for virtual proceedings.
Due process is where the debate gets murky, complicated by the fact that while Title IX is overseen by the Education Department’s Office for Civil Rights, it governs some conduct, sexual assault, that is subject to criminal law.
Biden’s next step should be restoring protections for the accuser by requiring that schools use the lower, “preponderance of the evidence” standard instead of the “clear and convincing evidence” standard that DeVos forced many schools to use.
And he should halt cross-examinations for both the accused and accuser.
Obama-era guidance was criticized by men’s rights groups and those defending students’ Constitutional rights for not providing enough protections for accused students, for allowing a lower standard of evidence than in a typical criminal court, and for discouraging live cross examination of the accuser.
But DeVos’ rule went too far in the other direction, providing so many protections for the accused that it infringes on protections for the accuser. Although her new rule allows schools and colleges to choose a standard of evidence, it requires them to apply whatever rule they select to all campus proceedings, including for staff and faculty. As a result, many institutions are forced to use DeVos’ stricter evidentiary standard because their collective bargaining agreements, tenure rules, and academic freedom codes require the stricter standard, notes Title IX scholar R. Shep Melnick.
DeVos argued that cross-examinations are crucial for understanding the credibility of an allegation. But even with state rape shield laws protecting their sexual history from questioning, the process can still re-traumatize accusers by making them relive the experience. And although neither party can conduct the cross-examination themself, it may give an unfair advantage to students able to hire a good lawyer, which may further discourage reporting.
Because Title IX investigations only decide whether a student violated the university’s code of conduct and not the law, and because high standards shouldn’t discourage students from reporting, Biden should return to using the standard of evidence used in civil proceedings.
This won't necessarily be simple. Sage Carson, manager of sexual violence advocacy organization KnowYourIX, anticipates men’s rights activists and others who found comfort in the DeVos administration will bring a wave of lawsuits against such changes.
New Biden guidance would also present administrative challenges for schools and colleges and the Education Department. Colleges and universities scrambled to update their Title IX policies to ensure compliance before DeVos’ new rule went into effect in August 2020. New interim guidance and an eventual new rule will require another round of recalibration. Obama administration’s Title IX guidance was voluminous, and DeVos’ 2,000-plus-page rule wasn’t much of an improvement.
But civil rights aren’t protected on the back of an envelope. Although demanding, a survivor-centered rule is the right public policy.