President Joe Biden started the process Monday to reverse a controversial Trump administration rule on how schools must respond to students鈥� claims of sexual assault and harassment.
Biden that ordered the U.S. Department of Education to review the rule, which outlines obligations for K-12 schools, colleges, and universities under Title IX, the federal law that prohibits discrimination on the basis of sex. It鈥檚 part of a set of actions to mark International Women鈥檚 Day.
Former U.S. Secretary of Education Betsy DeVos introduced the new rule in May 2020 after several years of meetings with assault survivors, students who said they鈥檇 been falsely accused, advocacy groups, and educators. It replaced nonbinding guidance issued under the Obama administration that DeVos criticized for potentially infringing on the due process rights of the accused.
As a candidate, Biden pledged to rescind the Trump-era rule. As vice president, he helped lead the Obama administration鈥檚 work on the issue.
鈥淚t is the policy of my Administration that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity,鈥� the executive order says.
The rule DeVos helped create allowed schools to shift the threshold that officials use to decide if an assault claim requires a response, from the 鈥減reponderance of evidence鈥� standard set under the Obama administration to a 鈥渃lear and convincing evidence鈥� standard, which is a higher bar to prove claims of misconduct.
The rule defines sexual harassment as 鈥渦nwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school鈥檚 education program or activity,鈥� a stricter definition than is used in employment law. Schools will be found in violation of Title IX if they are 鈥渄eliberately indifferent鈥� to such conduct, the rule says.
Supporters of the changes said they helped preserve due process rights and set clear rules for all parties involved in an investigation.
鈥淒ue process back on the chopping block,鈥� Samantha Harris, an attorney who has defended the DeVos Title IX rule, in response to Biden鈥檚 order Monday.
Critics of the Trump-era rule, including some survivor-advocacy groups, said the changes would make it more difficult for students to prove their claims and ensure their schools addressed their needs.
National Women鈥檚 Law Center President Fatima Goss Graves called Biden鈥檚 order a 鈥渧ictory for the many brave student survivors who rose up against the injustice, discrimination, and cruelty of DeVos鈥� Title IX rule.鈥�
Biden鈥檚 order directs the Education Department to work with the U.S. Attorney General to review the rule within 100 days to ensure it is consistent with 鈥済overning law, including Title IX鈥� and the policy of the Biden administration.
The order also directs Education Secretary Miguel Cardona to 鈥渋ssue new guidance as needed鈥� and to 鈥渃onsider suspending, revising, or rescinding鈥攐r publishing for notice and comment鈥� proposed rules suspending, revising, or rescinding鈥� any agency rules that don鈥檛 align with the Biden administration鈥檚 approach to sex equity in education.
Because the Trump-era Title IX rule was passed through the administrative rulemaking process after public review and input, it will likely require a similar public notice and comment period to rescind or revise it.
Also Monday, Biden will sign an order to create a . That group will help coordinate federal gender equity efforts in areas including education.
