Biden orders review of Trump-era rule on campus sexual misconduct

President Biden on Monday ordered a review of a Trump administration rule on how colleges handle sexual misconduct allegations, beginning what is likely to be a long process of undoing the policy.

Biden signed an executive order on International Women’s Day directing Education Secretary Miguel Cardona to review the Title IX rule issued by the Trump administration last year, which bolstered the rights of those accused of sexual misconduct on campus, to determine whether it is consistent with the policies of the new administration.

“It is the policy of the Biden-Harris administration that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity,” Jennifer Klein, executive director of the White House Gender Policy Council, said at a briefing Monday.

The executive order, which directs a broad review of the Education Department’s rules, policies and regulations, says that Cardona should consider “suspending, revising, or rescinding” agency actions that are not consistent with the policy of the Biden administration.

Biden is likely to roll back the Trump administration rule issued last May, which narrowed the definition of sexual harassment and required live hearings and cross examination of the witnesses involved. It also allowed schools to choose to use a higher burden of proof.

Advocates who have forcefully criticized the Trump-era rule welcomed the Biden administration’s latest move, expressing hope it would eventually lead to a rollback of the policy.

“We’re very encouraged by this step,” said Emily Martin, vice president of Education and Workplace Justice at the National Women’s Law Center. “This really begins the process of reviewing, and we are very hopeful, rescinding the incredibly harmful sex harassment rule that was issued under [former Education Secretary] Betsy DeVos’s leadership.”

On the campaign trail, Biden criticized the previous administration’s rule as an effort to “shame and silence” sexual assault survivors and pledged to bring a “quick end” to it if elected.

“It’s wrong,” Biden said in a statement last May, after the rule was released. “And, it will be put to a quick end in January 2021, because as president, I’ll be right where I always have been throughout my career — on the side of survivors, who deserve to have their voices heard, their claims taken seriously and investigated, and their rights upheld.”

But issuing a new rulemaking to replace the Trump administration’s rule is expected to take some time — potentially multiple years — given the extensive process undertaken by the Education Department under former President Trump to put forth the rule that went into effect last August. The Obama administration, in contrast, put forth its own policies using informal guidance, including a 2011 “Dear Colleague” letter that was swiftly rescinded by DeVos.

“The most important ramification for that is that, in order to undo that, the Biden administration will have to go through the same process,” said R. Shep Melnick, a Boston College professor who has researched and written on Title IX.

“They have a lot of really capable people ready to put a high priority to this,” Melnick said of the Biden administration. “Maybe they could do it in a year.”

While Biden has criticized the Trump administration’s rule, it is not clear whether his administration will look to revert back to same policies issued under the Obama administration, which allowed schools to use the preponderance of evidence standard to judge cases of sexual misconduct. The Trump administration’s rule allowed schools to use a higher standard of proof.

White House press secretary Jen Psaki on Monday would not specify where Biden ultimately wants the rules to go, deferring to Cardona to make recommendations.

“I think the president wants a recommendation from the Secretary of Education,” Psaki told reporters at a briefing. “I don’t think he’s going to get ahead of a policy process or recommendations by his secretary of Education.”

Melnick observed that new regulations that closely reassemble those issued under Obama may not survive court challenges, which could ultimately cause Biden to take a different approach.

“If they tried to bring back the Obama-style regulations, I don’t think they would survive the judicial review,” Melnick said.

While the process of undoing the rule is likely to take some time, advocates are hoping that the Biden administration will stop enforcing at least parts of the rule issued by the previous administration.

“The executive order asks the secretary of Education to consider whether to rescind or revoke anything immediately and it also makes clear that the secretary should work as quickly as practicable to take action,” Klein said Monday when asked whether the new administration would stop enforcing the current rule.

Broadly, the executive order directs Cardona to review all existing regulations, orders, guidance and policies that “are or may be inconsistent with the policy” of the administration and to provide findings of that review to the White House Office of Management and Budget director.

Biden also signed an order formally establishing a Gender Policy Council at the White House that will focus on upholding the rights of women and girls and advancing gender equity and equality in the United States and globally.

The council will be responsible for coordinating efforts to advance gender equity and equality across the federal government by addressing issues like systemic bias, economic security and opportunity, health disparities and gender-based violence.