The Biden administration will have limited options to scrap Title IX regulations implemented three months ago that control how schools deal with sexual assault cases.
The Trump administration's rules, which were opposed by anti-rape activists and K-12 and college administrators, gave more rights to students accused of assault and restricted how schools are allowed to investigate sexual misconduct allegations.
Proponents of the new rules, including Republicans and the civil liberties nonprofit Foundation for Individual Rights in Education, celebrated them as a balanced approach to the gender equity law Title IX. But Democrats and advocates for assault victims, including the National Women's Law Center, argued that the regulations would discourage students from reporting assaults.
President-elect Joe Biden months ago promised a "quick end" to the Trump administration's Title IX regulations if he assumed office. His campaign's policy director, Stef Feldman, told reporters last month that Biden planned to "return to and then build on" the Obama administration's policies, which emphasized the rights of accusers and allowed more ways for schools to adjudicate sexual misconduct allegations.
However, because Education Secretary Betsy DeVos put her framework in place through a formal rule-making process, unless there is congressional action, the Biden administration will have to go through the same procedures to overhaul the Title IX regulations, which could take as long as two years. DeVos has said her team was "methodical about our rule-making and regulatory moves" to make it more difficult for a subsequent administration to make changes.
The department argued this week that getting rid of the regulation would be "a step backward for all students," and argued that the rule benefited victims by requiring schools to have "a fair, transparent, and reliable process for handling Title IX complaints."
"To get rid of the DeVos Title IX rule is to ignore the consensus Supreme Court rulings, dozens of lower court decisions, and scholars across the political spectrum," said Angela Morabito, a department spokeswoman. "To get rid of the DeVos rule is to send a clear message that due process and fairness don’t matter."
The Trump administration's regulations, which took effect in August, require colleges to set up courtlike hearings, in which accusers are cross-examined by someone representing the accused, to adjudicate sexual assault cases. In addition, the regulation uses a narrower definition of sexual harassment than what is outlawed in workplaces.
On Thursday, a lawsuit by a group of victims' rights nonprofits challenging the legality of the Title IX regulations will go to a bench trial in a Massachusetts federal court. Separately, 18 states and the District of Columbia have sued DeVos to block the regulations in a case scheduled to continue into the spring.
The lawsuits offer one potential shortcut to get rid of the regulations.
Because litigation over the Title IX regulations will likely continue into the spring, the Biden administration could agree to put the rule on hold, effectively killing it. Then the administration could issue its own framework to replace it. However, Republican attorneys general or other groups could intervene in the litigation and demand that a federal judge rule that the regulation be enforced.
R. Shep Melnick, a political science professor at Boston College who has studied the history of Title IX, said another possible strategy Biden's appointees may pursue is a two-tiered approach, in which they move forward with creating a new framework while issuing guidance in the meantime to tell schools how to get around the current regulations.
"During the Obama administration, the Office for Civil Rights issued a number of guidelines on affirmative action, essentially saying this is what the Supreme Court has said and we want to point out all the leeway which the courts have left open," Melnick said.
Federal courts have ruled that Title IX requires K-12 schools and colleges to address reports of sexual harassment and assault. Previous presidential administrations issued guidance laying out what should happen when a student reports an allegation of sexual misconduct, but under President Donald Trump, the Education Department scrapped the recommendations and issued formal regulations.
The vast majority of over 124,000 comments submitted before the rule was finalized this year were critical of DeVos' regulations. No victims' rights organizations supported them. College presidents, including Trump ally Jerry Falwell Jr., who was then head of Liberty University, urged the government to scale back the regulation, saying the new rules tied their hands too much. K-12 school groups warned that because the regulation limits when the federal government can find a school in violation of Title IX, more students would turn to lawsuits that could prove costly for districts.
School administrator organizations are now urging the incoming Biden administration to repeal DeVos' Title IX regulations, as are student activists.
"There's a sense of urgency we hear from students and survivors wanting this just gone, and how quickly can it be gone," said Tracey Vitchers, executive director of It's On Us, the anti-rape initiative Biden launched in 2014. "There also has to be a balance of following the law."
During the Obama administration, Biden became the face of the Education Department's efforts to combat campus sexual assault.
He unveiled and championed a 2011 directive that ordered schools to have grievance processes in place, discouraged schools from letting those who were accused directly question their accusers in hearings and instructed schools to complete investigations within 60 days, among other provisions. Many victims' advocates praised the guidance as crucial to upholding students' civil rights, while a loose coalition of conservatives, men's rights activists, lawyers, law professors and civil liberties groups criticized it, saying it did not sufficiently emphasize due process.
Biden's campaign platform this year called for restoring the 2011 directive, but victims' rights groups say the administration needs to do more.
"Just reversing and going back to before is not actually the right answer, even if it sounds convenient," said Laura Dunn, a victims' rights lawyer who lobbied for stronger Title IX protections during the Obama administration.
Since 2011, student activists have increased pressure on schools to do a better job dealing with sexual violence. Court decisions have also imposed specific requirements on colleges and universities in certain states. Meanwhile, changes in how students communicate with one another have enabled new avenues for harassment.
"Dating apps like Tinder did not exist, just as an example," Vitchers said. "It's just a very different world than it was 10 years ago."
In addition, the advocacy community has become increasingly interested in alternative options to address sexual violence, such as restorative justice, a process in which perpetrators confess to the people they assaulted in the presence of trained facilitators.
"Times have changed, and we want to be certain that Title IX regulations evolve and keep up with where we are now," said Kenyora Parham, executive director of the advocacy group End Rape On Campus.
Biden has also pledged regulatory action to implement "annual, age-appropriate education on healthy relationships and affirmative consent" in K-12 public schools and to push for legislation that would require schools to improve sexual assault reporting practices. However, advocates and experts say any legislation addressing sexual misconduct in schools is a long shot if Democrats do not gain control of the Senate.