The Education Department began a long slog Monday to rewrite Title IX campus sexual misconduct rules with a week-long hearing that stands to dismantle the Trump administration’s regulating on the landmark sex discrimination civil rights law and to potentially expand its scope.
“Students deserve to feel safe from sex discrimination in all learning environments,” Education Secretary Miguel Cardona said in a statement Monday. “These Title IX hearings are an important step in the right direction and an opportunity for us to get your input on this important topic.”
President Joe Biden campaigned on overturning the Title IX rule finalized under the Trump administration last year – a rule that raised the bar of proof for sexual assault and misconduct, released schools from investigating incidents that occur off campus and bolstered the rights of those accused.
The rule, which sought to counter an Obama-era directive that pressured schools to lower the bar of proof, triggered outcry from Democrats, civil rights groups and others working on issues of campus assault who said that the Title IX rule from former Education Secretary Betsy DeVos would catapult students and schools back to a time when sexual assault was regularly swept under the rug. The majority of the 124,000 public comments submitted when DeVos first proposed the Title IX rule were in opposition to the measure, and once finalized it sparked dozens of lawsuits, including one involving 17 states and the District of Columbia.
The president said the rule would “shame and silence survivors” and “give colleges a green light to ignore sexual violence.”
In March, Biden signed an executive order directing Cardona to suspend, revise or rescind the DeVos-era rule, or begin the process of collecting comments to draft a new rule. On Monday, that process began in earnest, with department officials blocking off the entire week to hear public comments – the beginning of a process that many expect will dismantle what DeVos considers her most important legacy.
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“The Biden administration is prioritizing this,” Emily Martin, vice president for education and workplace justice at the National Women’s Law Center, says. “The fact that there are five days of hearings, the fact that the White House initiated this process through executive order, really demonstrates the recognition that these issues are key to the work of the Department of Education in the next few years and we are really heartened by that.”
“We’re hoping that this week of hearings will give a lot of opportunity for students who have experienced sexual harassment and sexual assault to tell their stories and share the ways in which the DeVos Title IX rules have made it more difficult to feel safe on campus and placed barriers in the way of schools responding appropriately to sexual harassment,” she says.
The kick-off of the week-long hearing unearthed long-standing political and philosophical sparring over the issue, with advocates of Title IX cheering the start of the process and opponents bracing themselves for an inevitable roll back of what they see as hard-won due process rights for students accused in the era of #MeToo.
In the lead-up to the week-long comment period, Families Advocating for Campus Equality, a nonprofit that advocates for “those affected by inequitable Title IX campus disciplinary processes,” urged students and their families in an “all hands on deck” email alert to share with the Office for Civil Rights why the administration should keep in place the due process procedures enacted under DeVos.
Advocates say that it’s much more than just ping-ponging between administrations.
“Since the ’80s, the Department of Education’s Office for Civil Rights has been building out guidelines and trying to guide schools in how to ensure that sex discrimination doesn’t prohibit access to education to anyone in federally funded education programs, and working to ensure fairness in the processes that go into doing so,” Sarah Nesbitt, policy and advocacy organizer at Know Your IX, says. “What we saw with the Trump administration was a complete flip in that whole process.”
“What we are looking at now moving forward is not necessarily a restoration of the exact policies or preferences that were in place before,” she says, “but more looking at continuing that process of building out the robust civil right that Title IX provides and preserving fairness along the way.”
The process comes at a time when the most recent federal data from the Civil Rights Data Collection shows that incidents of sexual violence in public schools increased by more than half between the 2015-16 school year and the 2017-18 school year, and cases of rape or attempted rape nearly doubled.
The process also gets underway at a time when there’s more on the line than sexual misconduct on campus. The Biden administration has signaled its interest in tackling discrimination on the basis of gender identity and sexual orientation as well, saying in the announcement for public comments that it’s especially interested in hearing opinions on the matter.
“The attacks on Title IX and attacks on LGBTQ students have gotten even more aggressive,” Martin says. “The stakes are clearer than ever and the importance of Title IX as a basic protection for students against what are really related issues – sexual harassment and harrassment based on LGBTQ status and targeting based on gender – that for those issues, it’s clearer than ever how important they are to students’ well-being.”
In March, the Justice Department’s Civil Rights Division issued an interpretation of the Supreme Court’s 2020 ruling in Bostock v. Clayton County, Georgia, which held that an employer cannot fire an employee for being gay or transgender. The interpretation extended the rule to schools.
“After considering the text of Title IX, Supreme Court case law, and the developing jurisprudence in this area, the [Civil Rights] Division has determined that the best reading of Title IX’s prohibition on discrimination ‘on the basis of sex’ is that it includes discrimination on the basis of gender identity and sexual orientation,” the memo reads, noting that two appellate courts have reached the same conclusion.
The interpretation has potentially major ramifications for faith-based schools that receive federal funding, including federal aid. Nearly 30 current and former students at evangelical colleges filed a lawsuit against the Education Department last month asking that the religious exemption built into Title IX be declared unconstitutional.
Any future Title IX regulating by the Biden administration may also insert itself into the latest culture war sweeping conservative states considering and passing laws that prohibit transgender students from competing in sports.
In an exclusive interview with ESPN, Cardona said that transgender girls have the “right to compete” and forecasted that the Biden administration is preparing to intervene on their behalf. As it stands, eight states ban transgender students from participating in girls’ and women’s competitions.
“I do believe in local control,” he told ESPN. “I do believe in state control, but we do have a responsibility to protect the civil rights of students. And if we feel the civil rights are being violated, we will act.”