How will a Biden administration affect Title IX?

Cohen Seglias Pallas Greenhall & Furman PC

College can be a time of freedom and exploration for young people. However, there is also a long-ignored culture of sexual discrimination and harassment that affects many campuses around the country — and, unfortunately, sometimes a tendency towards an increase in accusations. 

Title IX of the Education Amendments of 1972 is the federal law that allows alleged victims of sexual harassment or assault to argue that the culture of sexual assault and harrassment violates their right to equal opportunity in education.

Over the last 10 years, Title IX has been a battleground where colleges and universities debate their responsibility in both combatting sexual assault in their communities as well as providing fairness for those accused. From the Obama-era “Dear Colleague” Letter to the Trump administration’s 2020 regulations, school administrations have received conflicting instructions from the Department of Education over how to enforce Title IX.

So what is the future of this law under the Biden administration?

What is Title IX?

Below is the official text of Title IX of the Education Amendments of 1972:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

Since the 1970s, courts have interpreted this protection against sex discrimination as a protection against sexual harassment or assault. The argument goes that a culture of harassment and a tendency for administrators to disbelieve those who come forward about their experiences, create a hostile environment for many women, LGBTQ folks, and other survivors of sexual assault.

In 2011, the Department of Education under the Obama administration issued an unofficial guidance for colleges and universities known colloquially as the “Dear Colleague” Letter. In this letter, the Department encouraged school administrations to “take immediate and effective steps to end sexual harassment and sexual violence” in their communities.

The letter effectively encouraged schools to take accusations of sexual assault seriously, and establish a process for pursuing disciplinary action that protects the rights of both the complainant and the accused. The letter also made it clear that any school which fails to live up to this responsibility could be in danger of losing their federal funding.

Obama’s Department of Education issued several other unofficial guidelines during his term in office, all with similar intentions to establish Title IX as a tool for survivors.

How has the Trump administration changed Title IX protections?

The “Dear Colleague” Letter was viewed by advocates for survivors’ rights as a positive step toward fighting a harmful culture of sexual assault and harassment on college campuses. However, others criticized the guidance for burdening schools with regulations and privileging the word of sexual assault survivors over the word of the accused.

These critics were able to act on their objections to the Obama-era guidance once President Trump assumed office in 2017. Trump’s Department of Education almost immediately rescinded the “Dear Colleague” Letter, leaving many school administrations without federal guidance on how best to enforce Title IX’s nondiscrimination policy when it came to sexual harassment and assault.

In 2020, Trump’s Department of Education officially implemented a new set of rules, which established a process that all school administrations must follow when they receive sexual assault accusations. Many of these rules directly contradicted the policies established under the Obama administration, including the following:

  • Schools are only responsible for responding to sexual assault accusations that are filed officially through a Title IX coordinator or similar authority figure
  • Schools are now required to hold a live hearing with cross-examination of both parties
  • Schools should begin the process with an “innocent until proven guilty” mentality
  • Schools are now encouraged to adopt a “clear and convincing” standard of evidence — which is much higher than the previous standard, “preponderance of the evidence”

There are many other rules the Trump administration has put in place, but the bottom-line is that these rules tend to provide more support for the accused.

What will a Biden presidency mean for Title IX?

Now that Joe Biden has officially been elected President, many people involved with higher education are wondering what the future holds for Title IX. 

During the campaign, Biden promised to counteract many of the Trump administration’s policy changes with respect to Title IX. However, undoing the new regulations that went into effect in 2020 won’t be that simple.

The regulations that the Trump administration implemented were done through the official “rule-making” process under the Department of Education, rather than the more unofficial policy guidelines the Obama administration released like the “Dear Colleague” Letter. As a result, the Biden administration won’t be able to simply rescind the rules like Trump’s administration did in 2017.

In addition, it’s unclear exactly what regulations the new administration will put in place to replace them. It’s likely that Biden’s Department of Education will remove some of the requirements, like the ones that limit the circumstances under which schools would be required to respond to complaints, or the ones that require more exhaustive hearings and cross-examinations.

Not to mention the confusion that may arise around the legal standard for Title IX enforcement in the meantime, while schools wait for the Biden administration to solidify its new regulations. It seems likely that, like Obama, Biden’s administration will lean more toward the side of student’s rights than the rights of university administrations. However, students should be prepared to fight to defend their rights regardless.

Hire a student defense attorney today

The good news is that no student has to go through this stressful process alone. If you have been accused of sexual assault or harrassment and are worried that your university isn’t respecting your rights, DC Student Defense can help. Additionally, if you’ve filed a Title IX complaint and are worried that your university is not taking your claim seriously, we are happy to discuss your situation with you, as well. Contact us today to schedule a consultation

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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