Over 100 self-described advocates for civil rights and student survivors of sexual assault and harassment recently signed a letter asking President-elect Joe Biden to “stop enforcement” of the new Title IX rules “as soon as [he] takes office.” As discussed elsewhere on this blog, there is an open question about whether such a quick reversal on the Title IX rules is possible. Unless done well, a fast rollback of the rules could put schools, colleges, and universities between a legal rock and a hard place. Some of the other requests in the letter face fewer barriers to implementation. Although the letter is only one source in a crowded discussion about what the Biden administration should do concerning Title IX and civil rights, it is an interesting addition to the discussion of what changes might be afoot under the new administration.
The letter was signed by groups that are household names in the realm of educational civil rights, including the National Women’s Law Center, the American Federation of Teachers, and Know Your IX. The letter asks the new administration to do the following concerning the new Title IX rules that took effect on August 14, 2020:
- Immediately stop enforcement of the new Title IX regulations and “announce that it is taking steps to initiate new rulemaking,”
- “Pending new rulemaking . . . promptly release interim guidance, drawn from key positions of earlier guidance addressing Title IX protections against sexual harassment in schools, and also addressing related issues that have emerged during the COVID-19 pandemic,” and
- “During the first 100 days . . . propose rescinding the Trump administration Title IX rules and replacing them with new Title IX sexual harassment regulations . . . . “
As noted in our previous post and video podcast on the topic, immediately stopping enforcement of the new Title IX rules could allow educational institutions to stop using the rules without fear of OCR enforcement. But a reprieve from OCR would not protect schools, colleges, and universities from parties’ complaints that, regardless of what OCR says, the regulations are the law on the books and must be followed until formally rescinded or replaced. Interim guidance within the rules’ bounds could blunt their impact but would not likely allow wholesale changes to the rules that the organizations behind the letter seek. The final request—that the Biden team notice new rules quickly to replace the 2020 rules—is the most likely approach and the one that would give educational institutions the most reassurance that their actions would not be subject to legal challenge. It will not likely be quick, however.
The letter also asks ED for some changes that could come to fruition more quickly after inauguration day. For example, the organizations request that the Biden administration provide additional funding for programs and educational institutions relating to sexual harassment; support federal legislation aimed at supporting survivors and preventing harassment in schools; hold listening tours to understand the needs of survivors and students, and; improve civil rights data collection.
The letter also asks the Biden administration to direct OCR to resume its practice of conducting systemic reviews of educational institutions upon receipt of a single complaint of sexual harassment. Sweeping, systemwide reviews were a hallmark of OCR under the Biden administration, but Betsy DeVos scaled back the scope of OCR investigations in 2017. Were the Biden administration to want to do so, this would be an easy and quick change that could immediately be put in place. That said, when I was at OCR under the Obama administration, it was equally common to hear complaints about treating every individual complaint as a class-wide dispute from OCR staff as it was from the then-candidate for the White House. The Biden administration will have to wrestle with whether it wants to resume the practice, even if it can easily do so.
Along those same lines, although the letter asks the Biden administration to “restore standards from earlier guidance,” many other requests illustrate how many of the Trump era changes are likely here to stay. The letter uses the language of “supportive measures” in asking the administration to provide more guidance to schools on the wide range of measures that can be used with parties to a sexual harassment dispute. The old “interim measures” from the Obama administration are not mentioned. Similarly, the letter recommends that any new rules “ensure complainants and respondents have equal procedure rights in school investigations and disciplinary proceedings addressing harassment.” The due process protections in the 2020 regulations are likely to be a lasting legacy of the Trump/DeVos Education Department.
The letter also asks the Department to establish a new White House Task Force on sexual harassment in schools focusing on race, color, national origin, gender, LGBTQ status, disability, and the intersections between these identities. Similarly, the organizations request additional funds for OCR for its full range of civil-rights enforcement. These changes would be welcome. We have been laser-focused on Title IX sexual harassment since the rules were released in May 2020. The vast majority of complaints at OCR are related to alleged violations of other rights, though. It will be important for educational institutions to recalibrate to ensure sufficient focus is being given to other civil rights complaints in the New Year, regardless of what changes the new administration may bring.