We are now just a few weeks away from what may be one of the most consequential elections in our nation's history. Only four years after Republicans took a majority stake in both houses of Congress and the White House, polls indicate Democrats are now within striking distance of accomplishing the same thing. Given the polarity between the parties on many issues (education among them), it stands to reason that a “blue wave” sweeping through Congress and the White House could result in sweeping changes throughout the educational system—including some significant differences in how Title IX provisions are interpreted. Let's discuss some of these possibilities so students facing these issues may be better prepared.

Reinstating Obama-Era Guidance

Title IX has been in effect in this country since 1972 as part of the Education Amendments. It states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” In 2011, the Obama administration expanded the interpretation of the “basis of sex” clause to include incidents of sexual harassment and assault. This change effectively made it easier for students claiming to be survivors of sexual assault to seek the protections of Title IX, and schools were subsequently required to process these complaints under Title IX regulations.

Under the Trump administration, Secretary of Education Betsy DeVos rescinded this Obama-era guidance, effectively rolling back the clock on Title IX interpretation and allowing schools more latitude in how they process sexual harassment and assault complaints. If the Democratic Party assumes control of both houses and the White House, we can expect Obama-era Title IX rules to be promptly reinstated.

Reversing New DeVos Guidelines

Not only did the current administration roll back Obama-era guidelines—they established some of their own. In May of this year, Betsy DeVos announced a new set of rules that afforded new due process protections for students accused of sexual harassment or assault under Title IX. Under these new rules, which formally took effect in August, schools now are required to allow accused students to face and even cross-examine their accusers in a live hearing, similarly to the judicial process of the court system. Critics of the rule say it will discourage legitimate sexual assault survivors from coming forward; advocates say it will prevent students who are falsely accused from losing their educational benefits.

Democratic Presidential candidate Joe Biden has openly criticized the DeVos rule as an attempt to “shame and silence survivors.” He has promised that if he is elected, reversing this rule will be among the first things on his agenda.

The Upshot

The next few months pose plenty of uncertainty for schools and colleges on many levels—not just in trying to keep students safe during a pandemic, but also in figuring out how to uphold the law while affording due process to their students—and even reinterpreting what “due process” means. Schools have already begun rewriting many of their policies to account for the new DeVos rules—even as they realize these new policies may become irrelevant in the next several months.

Attorney Joseph D. Lento and the Lento Law Firm continue to monitor this evolving situation carefully so we may provide the best and most current guidance possible for students facing disciplinary action under Title IX. For more information, contact us here or call 888-535-3686.