President Joe Biden issued an executive order Monday to review all existing Title IX regulations within the next 100 days. The order also called for Secretary of Education Miguel Cardona to issue new guidance wherever the review results deem fit, but this may not include the Title IX changes that former Secretary of Education Betsy DeVos issued in May 2020. Rescinding those could take larger, legislative action.
Civil rights attorney Elizabeth Abdnour said this executive order is essentially a review of the changes that DeVos implemented. These changes, among other things, narrowed the definition of sexual harassment, required cross-examination of the claimant and accused (which the state of Michigan has had in place since 2018) and took away any definitive timeline schools had to follow when going through the Title IX investigation and hearing process.
Many advocacy groups found these changes problematic, stating that they gave more rights to the accused rather than the survivors. Biden’s campaign website promises that he will rescind those changes and reinstate the 2011 Obama-era Dear Colleague Letter.
“Now, the problem is going to be: How do they effectuate any changes that they think need to happen because the Title IX rule went through a lengthy, multi-years-long rulemaking process," Abdnour said.
These changes were implemented through a legislative process, which differs from most Title IX changes, Abdnour said. Historically, Title IX has been changed through guidances that presidents and the Department of Education issued, which can be rescinded easily.
Abdnour said she believes the most recent changes made to Title IX won’t fall under the powers this executive order provides the Secretary of Education, but she’s not sure, because there had never been a Title IX rule like this.
“So, any changes that the president wants to make that are substantive, are going to likely require another lengthy rulemaking process,” she said.
This comes as 278 survivors signed a letter published in Teen Vogue, calling on Biden to make changes to Title IX, including putting interim measures in place while they make larger changes and to issue a Notice of Proposed Rule Making by April 1, 2021.
Abdnour said she expects the new Title IX policies to be a middle ground between Obama-era Title IX and new policies to account for state-level changes that have been made, including an expansion of what Title IX covers.
As of right now, she said, institutions like Michigan State shouldn’t start to reevaluate their policies yet because that takes resources away from investigating complaints. She said since MSU already has a university policy for sexual violence and harassment, that it’s not worth changing anything when they may have to change Title IX again in a few years.
“It's just going to be too much time and effort and confusion for the campus community,” Abdnour said.
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