On March 8, President Biden signed an executive order directing the federal Department of Education (DOE) to make a fresh review of its controversial treatment of how colleges and universities conduct Title IX investigations of claims of sexual assault or harassment. Those rules were issued last May by former DOE Secretary Betsy DeVos.
The DeVos rules spelled out due-process rights for persons accused of sexual harassment or assault, which the former Secretary viewed as often slighted in the previous version of DOE’s rules under Title IX, which bars sex-based discrimination by educational institutions receiving federal funds, including federally-funded scholarships or loans.
Rethinking Title IX
The new order directed DOE to evaluate whether the DeVos regulation is “consistent with the policies” of the Biden administration. Before issuing the current rule, DeVos had in 2017 revoked Obama-era Title IX guidance to schools, issued in 2011, which had not carried the force of law.
At that time, DeVos had termed the Obama-era rules a “failed system” which had tilted Title IX investigations against the accused. In particular, she had criticized the Obama-era guidance for directing schools to use a “preponderance of the evidence” standard in judging claims of sexual violence, rather than the more stringent “clear and convincing evidence” standard.
Under the new Biden order, schools are advised they may use either standard, until further guidance is issued, as long as they are not already using the higher standard for Title IX complaints from their own employees. In addition, while the Obama-era guidance disallowed use of mediation to resolve complaints, deeming it inappropriate for complaints of sexual harassment or violence, the new guidance permits its use, as long as both the person complaining and the person accused accept its use.
The new Biden executive order further directs DOE to review other policies, guidance, orders, and regulations to determine whether they are consistent with the new administration’s policy to “guarantee education free from sexual violence.”
It remains unclear exactly how the newly-ordered policy review and any change in regulations will proceed. If significant changes in the current regulations are desired, that would likely require a new rule-making proceeding, which could require full Administrative Procedures Act opportunities for public comment and one or more hearings. (DeVos’ rule drew around 125,000 public comments.)
About the Author
Scott J. Limmer is a New York criminal attorney practicing primarily in Nassau, Suffolk, and Queens counties. He also represents students nationwide when they are charged with violations of their school’s code of conduct.