The new executive orders establish a Gender Policy Council and call into question Trump-era changes to university sexual assault policies.
WASHINGTON (CN) — Individuals accused of sexual assault or harassment on college campuses could lose some of the protections that the last administration afforded them after President Joe Biden directed the Department of Education on Monday to review Title IX policies.
Biden announced the shift to coincide with International Women’s Day, making good on his campaign promises to focus on gender equity and strengthen the 1972 federal law that prohibits sex-based discrimination in education.
“In our nation, as in all nations, women have fought for justice, shattered barriers, built and sustained economies, carried communities through times of crisis, and served with dignity and resolve,” Biden said in a statement. “Too often, they have done so while being denied the freedom, full participation, and equal opportunity all women are due.”
The order calls for the review of Title IX and any related regulations, orders, guidances or policies for consistency with the Biden administration’s goal of guaranteeing students an “education free from sexual violence.”
Under the Trump administration, Education Secretary Betsy Devos rejiggered the definition of sexual harassment to become more narrow, and made it so that evidence in campus assault cases had to show “clear and convincing,” rather than just “preponderant,” evidence.
After the more lenient preponderance-of-evidence standard was adopted in the Obama years, the American Bar Association warned that the government needed to better balance victims’ rights against the due-process rights of the accused.
UCLA public policy professor John Villasenor published a study in 2016 that put the probability at 33% that campus tribunals would wrongly convict innocent parties of Title IX violations solely because of an evidentiary standard lowered from “clear and convincing” to “preponderance of the evidence.”
At the National Women’s Law Center, meanwhile, Shiwali Patel, director of Justice for Student Survivors, notes that sexual harassment on campus is already extremely unreported, and that the Devos regulations created a “chilling effect.”
“Devos created an unfair grievance process that’s stacked against complainants,” Patel said. “It’s a more burdensome process for sexual harassment than any other misconduct.”
Karen Truszkowski, an attorney who specializes in Title IX cases, distinguished how the Devos regulations treated sexual misconduct complaints as compared with complaints about race or religion.
“It’s not about not giving protections to the respondents — I’m 100% in favor of respondents having the same rights as the claimants,” Truszkowski said. “As long as it’s applied uniformly, both sides are treated equally, and the university treats all kinds of the complaints the same.”
Biden’s review could create a major shift in how colleges, universities and K-12 schools handle allegations of sexual misconduct.
The Women’s Student Union, a student body association at Berkeley High School in California, sued the Education Department on Monday over the policy changes.
In their federal lawsuit, the group claims the agency “failed to consider important aspects of the problem, including that the regulations discourage students from filing complaints about sexual harassment with their schools and discourage schools from learning about sexual harassment experienced by their students.”
In a separate executive order on Monday, Biden created a White House Gender Policy Council to combat bias and discrimination both in specific fields like education, the labor force and health care, and in more abstract terms like wage and wealth gaps.
The council will be led by Jennifer Klein, who served as a senior adviser to Hillary Clinton, and Julissa Reynoso, chief of staff to first lady Jill Biden and ambassador to Uruguay during the Obama administration.
Before the Trump administration disbanded it, a similar entity was known as the White House Council on Women and Girls during the Obama administration. Biden resurrected the office with an intentional name change as the council aims to address all types of discrimination — including for LGBTQ people.
“We are very inclusive in our definition of gender,” Klein said in a White House press briefing on Monday.
The executive order requires the council to submit a government-wide strategy for advancing gender equity and equality in the United States, plus an annual report on implementing that strategy. On the council’s staff will be a special assistant focused on advancing equity for Black, indigenous, and Latina women and girls.
“We’ll be working urgently to ensure that both here in the United States and globally, gender and gender identity do not predetermine opportunity and outcomes,” Klein said. “And that all people, including women and girls and those who face other forms of discrimination can thrive.”
The Department of Education only just finalized its Devos-ordered regulatory shakeup in May 2020 — timing that led the American Council on Education to complain that the agency “is not living in the real world.”
“As a result of the pandemic, virtually every college and university in the country is closed,” Ted Mitchell, ACE’s president, said at the time. “Choosing this moment to impose the most complex and challenging regulations the agency has ever issued reflects appallingly poor judgment.”