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President Biden Orders Review of Title IX Changes

Posted by Joseph D. Lento | Mar 11, 2021 | 0 Comments

President Biden just signed an executive order directing the Department of Education to review new Title IX regulations promulgated in the Trump Administration's last year. Those new regulations guarantee students accused of sexual misconduct certain procedural protections, including the right to retain an attorney to cross-examine the accuser at a formal hearing. What, though, is the Biden order's impact on those rights?

No Immediate Legal Effect

The Biden order has no immediate legal effect. While presidents have executive power, a president generally cannot with a single order rewrite or overturn administrative regulations put in place under the elaborate processes of the federal Administrative Procedure Act. The Trump Title IX regulations took years to guide through the regulatory process before their August 2020 effective date. Those regulations and their procedural protections currently remain in effect. Students accused of sexual misconduct continue to have the right to hire an attorney to confront and cross-examine the accuser and to enforce those rights through court action if necessary.

The Probable Eventual Overturn of Protections

The Biden order directs the Education Department to evaluate within 100 days whether the current protective procedures keep educational environments free of sex discrimination, including sexual violence and harassment. Every indication suggests that the Biden Education Department will find that the current procedures do not accomplish that end, and instead discourage victims from coming forward. As Vice-President, Biden gave strong support to the expansive Obama Administration guidance that the Trump Administration withdrew and the new Title IX regulations addressed. Press report indicates that Biden's campaign website specifically criticized the Trump rules.

The review that Biden's order directs will likely result in the withdrawal of the new protective regulations in favor of regulations like those that existed under the Obama Administration. That probable withdrawal of the new protections, though, may not occur for at least two years and perhaps longer. Press report quotes the president of the Association of Title IX Administrators as predicting rulemaking delays as long as until 2024. After all, it took the Trump Administration four years to complete its rulemaking process for its regulations to go into effect.

In the Meantime, Potential End Runs

Yet, the Biden order is likely to influence Title IX enforcement procedures in the meantime. Colleges and universities are surely well aware of the new Administration's posture toward the former Administration's protective regulations. They may well be more willing to resist following those regulations, thus denying accused students their important procedural rights. And in the meantime, while it shepherds new regulations through the arduous rulemaking process, the Biden Administration may also pursue any or all of these interim options:

  • disclose that it will not enforce the current Title IX regulations, giving schools a free pass to violate them;
  • challenge the current Title IX protections in sympathetic courts, seeking their stay pending resolution;
  • decide not to defend the current Title IX protections in pending lawsuits challenging them;
  • re-issue Obama-era guidance interpreting Title IX and its current regulations to provide greater rights and advantages to the accuser.

The Accused Student's Response

The accused student still has rights, even in this uncertain and changing regulatory environment. Students accused of sexual misconduct may still enforce the current Title IX regulations, including their key rights to representation and cross-examination. If a college or university denies those rights, then the student may retain counsel to enforce those rights through a civil lawsuit.

Indeed, the Biden Administration likely cannot simply replace the Trump Administration Title IX regulations with the former Obama guidance. Court decisions in the Sixth, Eighth, Ninth, and other federal appellate circuits, and in state courts of appeal, upholding due-process challenges, continue to define what an administration can and cannot do in this area. Constitutional due process requires some level of fairness in Title IX sexual-misconduct proceedings. The question is only how much process is fair.

Get the Help of a National Title IX Attorney

One thing that the Biden order confirms for students accused of sexual misconduct is the wisdom of retaining national Title IX attorney Joseph D. Lento. Attorney Lento helps students nationwide defeat false and exaggerated Title IX sexual-misconduct charges. Attorney Lento has the years of experience, trial-lawyer skills, and strategic negotiation insight to help accused students preserve their good standing, reputation, and academic record. Hundreds of college and university students across the country have trusted national Title IX attorney Joseph Lento and the Lento Law Firm with their representation in Title IX matters. Call 888-535-3686 to schedule a consultation, or use the online service.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento passionately fights for the futures of his clients nationwide. Attorney Lento and his team represent students and others in disciplinary cases and various other proceedings at colleges and universities across the United States. Attorney Lento has helped countless students, professors, and others in academia at more than a thousand colleges and universities across the United States, and when necessary, he and his team have sought justice on behalf of clients in courts across the nation. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, is admitted pro hac vice as needed nationwide, and he can help you or your student address any school-related issue or concern anywhere in the United States.

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