DeVos-era regulations broke campus Title IX proceedings — Biden rules restore due process

On the recent 50th anniversary of Title IX — the groundbreaking civil rights law prohibiting sex discrimination in education — the Biden administration proposed an overhaul of rules established under former Secretary of Education Betsy DeVos, which limit schools’ responsibility to respond to campus sexual violence. Critics immediately charged that President Biden’s rule would “demolish due process rights” for the accused. 

As an attorney who has worked with Title IX complainants, I’ve seen firsthand how the DeVos rule permits schools to turn their backs on reports of sexual violence. And I know this: If you care about due process, you should welcome the new Biden rule. 

Title IX was passed so all students could enjoy equal access to education. The law requires that schools address sexual violence as a civil rights violation, like any other discrimination claim. But the DeVos rule mandates that schools adopt uniquely onerous procedures for investigating sexual harassment — as compared to other forms of discrimination and misconduct violations — while also shielding schools from liability for ignoring sexual violence.

The result? Schools essentially have a license to ignore sexual violence, and survivors are denied due process.

We’ve seen the impact on Title IX investigations in real time. Title IX processes, which used to take around six months, frequently last over a year. From my experience, even in California, which has strong state protections, students face months-long delays, often stretching the process past the parties’ graduation and rendering the result meaningless. Schools have even refused to investigate credible allegations of sexual harassment. In hearings, survivors are subjected to invasive and irrelevant questioning — including about their past sexual history — which often would not be permitted in court. 

This failure to address sexual violence takes a devastating toll on students. Survivors often consider dropping their claims altogether, not because they cannot win, but because the process is too traumatic and burdensome. Survivors struggle to maintain their grades, and consider leaving their school entirely — following the estimated 34 percent of on-campus sexual assault victims who drop out of university, with long-term career ramifications.

For them, DeVos-era due process is no due process at all. But the Biden rules thread the needle of respecting all parties’ rights and education. 

First, the DeVos rule limited the definition of sexual harassment to incidents that were “severe, pervasive, and objectively offensive.” Even when students have alleged severe sexual harassment such as sexual assault, schools have rejected their claims because the harassment was a one- or two-time incident and not deemed “pervasive.” But even a single incident of harassment can disrupt a student’s education, and schools should address harassment beforeit becomes severe or pervasive. The Biden rule encodes the standard for sexual harassment used in Title VII employment discrimination cases — namely, that sexual harassment is “sufficiently severe or pervasive” — “or” is key here.

Second, the Biden rule will require schools to investigate sex discrimination complaints even if the misconduct occurs off-campus. The DeVos rule did not require schools to investigate complaints — including assaults that occurred between students or students and staff if they occurred off-campus, and it actually required schools to dismiss claims that arose during study abroad.

At “commuter” schools with no on-campus housing, such as community colleges and some state schools, or at schools where many students live off-campus, schools do not have to address most sexual violence claims under the current rules — even if they are harming students’ education.  

Next, the DeVos rule instituted hearing requirements that mandate Title IX processes look more like criminal proceedings than campus discipline, with direct, live cross-examination by an adviser (often a lawyer). These rules created a two-tier disciplinary system: a simple investigation for most student misconduct — like a racial slur or punch — and a courtroom-like process for gender violence. This double standard seems rooted in a misogynistic belief that people, particularly women, are more likely to lie about sexual assault and harassment. It also disadvantages vulnerable parties, whether complainants or the accused, who cannot afford to hire an attorney to perform a cross-examination.

Under the Biden rule, institutions can hold live Title IX hearings with adversarial cross-examination only if such hearings are required for non-sexual disciplinary proceedings. This does not mean that students have no safeguards against false allegations: Rather, a neutral decisionmaker will assess credibility by questioning each party in a meeting or at a live hearing.  

Finally, the Biden rule reverses the DeVos-era requirement that schools can only be held liable for Title IX violations if they respond with “deliberate indifference” to sexual harassment complaints, which is a high standard that allows schools to evade responsibility for failing to discipline sexual misconduct.

Under that standard, the Ninth Circuit concluded that the University of California-Berkeley could not be liable for their year-long delay in addressing allegations that three female college students had been assaulted by the same man, even if Berkeley’s failure to grant protective measures for the women was potentially negligent and “troubling.”  The Biden rule will require schools to take “prompt and effective” action to address sex discrimination, and it will hopefully curb unreasonable delays.  

Schools should have a legal responsibility to address campus sexual misconduct, as they would any discrimination claim, and students should not have their most painful experiences met with indifference. In an era where rights are being stripped away from women and girls, the new Title IX rules moves us toward a world where all students can learn free from gender violence.

Cara Newlon is the Peter and Patricia Gruber Fellow at Public Counsel, the nation’s largest provider of pro bono legal services to promote justice. The firm has represented over a dozen Title IX complainants.