President Joe Biden plans to rewrite the DeVos Title IX guidance, which strengthened the rights of those accused of campus sexual assault.

With schools and colleges nationwide having rewritten their Title IX policies to comply with Betsy DeVos' Title IX rule announced last May, further changes to campus policies later down the line are now inevitable.

The Trump administration reversed many of the ‘victim first' changes and provisions in place by the Obama administration. The changes under Obama were criticized for eroding the rights of the accused, for instance, by discouraging cross-examination. Women's rights activists, in turn, criticized the DeVos program for raising the evidentiary bar for penalizing sexual assault on campus.

Biden Commits to Change

Biden made it clear on his campaign website last year that he was firmly against the DeVos guidance, stating that it gave colleges a “green light” to “strip survivors of their civil rights.”

On International Women's Day in March this year, Biden clarified his position, signing an executive order spelling out his administration's policy and ordering the Education Department to reexamine the guidance.

Biden's executive order specified that Education Secretary Miguel Cardona should review the Education Department's regulations and policies within 100 days.

What that means for schools and colleges in the meantime is not currently clear. The Department of Education's lengthy process for changing guidance could take years to implement.

The Main Changes introduced by the DeVos Title IX Guidance

The existing regulations issued by the U.S. Department of Education went into effect on August 14, 2020. DeVos' guidance made a number of changes designed to bolster the rights of the accused.

One of the critical facets of the Title IX process introduced by the DeVos guidance is that schools must investigate allegations of sexual misconduct covered by the regulations via a specific grievance process with a live hearing and cross-examinations of both sides. This has been a key point of contention in the debate over school policy. Women's rights activists have argued that this often traumatizing requirement dissuades victims from coming forward, while critics of the Obama administration's Title IX rules considered the discouragement of cross-examination in hearings to erode the accused's rights to a fair hearing and due process.

The guidelines also narrowed the scope of prohibited conduct punishable under Title IX. The new guidance clarified the definition of harassment as being “unwelcome conduct” determined to be “severe, pervasive and objectively offensive.” The DeVos guidance only covers instances of harassment that took place on campus, including off-campus fraternity and sorority houses. With this change, schools and colleges became no longer required to investigate offenses in off-campus housing or overseas.

Lastly, the guidance raised the evidentiary bar for penalizing campus sexual assault. Before, schools disciplined someone if they met the standard “preponderance of the evidence,” simply proving that it was “more likely than not” that they violated a Title IX policy. Now, schools may use a “clear and convincing” evidence standard to prove a Title IX policy violation.

The expectation of intervention is lower too. Under the DeVos' rules, the Department of Education will punish schools if they failed to investigate a Title IX offense of which they have ‘actual knowledge.' Under the previous rules, the Department would penalize schools if they ‘reasonably should have known and failed to act.

Changes under Biden are unlikely to be as simple as reverting to the Obama administration's Title IX guidance. The debate in some ways has moved on and has been complicated further by the rise of discrimination claims from men who argue schools have unfairly sanctioned them under Title IX.

The Impact of Anti-Male Bias Discrimination Claims

As the debate over campus policy has raged on, one shift in the landscape over the years is the rise of retaliatory lawsuits.

In a recent article, Bloomberg emphasized that recent case law will have “a profound impact” on what the Biden administration can do in reforming Title IX guidance.

Since then, a number of male students have successfully made sex-based discrimination claims after their schools sanctioned them for on-campus harassment. This could throw a spanner in the works for Biden, preventing him from reverting to Obama-style guidance.

With schools increasingly used to seeing due process appeals turn into lawsuits, neither they nor the Government can ignore public disquiet over the erosion of accuser's rights. Schools will increasingly have to anticipate lawsuits if they persevere in over-zealous disciplinary action against their students. It has become more evident that school policy must strike a balance when protecting students' rights and ensuring a fair process.

What Does This Mean For Schools Right Now?

The road ahead for schools is unclear. The Department of Education now must review the guidance.

Many colleges adopted a dual-adjudication system last year, complying with DeVos' federal Title IX policy only where they had to, and implementing their own Obama-style school policies to fill the gap the changes had left. Schools may read Biden's words as a green light for this victim-focused attitude; however, retaliatory lawsuits could prove this to be short-sighted.

If they attempt not to enforce the DeVos guidance, schools could be left in some confusion over how to ensure their policy is compliant with federal law. It is feasible that the Department of Education should issue interim guidance. In any case, the pendulum swing in Title IX policy interpretation will muddy the waters for students and staffers under investigation, making it more important than ever to secure up-to-date legal advice.

Discuss Your Title IX Concerns With Joseph D. Lento

It can be difficult and unfair for students that their policies and due process designed to protect them can shift so rapidly because of partisan politics.

Sadly between swiftly changing governmental positions and a fraught point-scoring political climate, students accused of Title IX violations can fall between the cracks.

If you face accusations of sexual harassment or misconduct, you must take steps to restore your name as soon as possible. To ensure your rights are protected under Title IX, contact attorney Joseph D. Lento right away. Call 888-535-3686 or contact him online to schedule a consultation today.