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The Biden administration will have limited options to remove Title IX regulations implemented three months ago that control how schools handle sexual assault cases.
The Trump administration’s rules, which anti-rape activists and elementary and high school administrators have opposed, have given more rights to students accused of assault and restricted how schools are allowed to investigate allegations of sexual misconduct.
Supporters of the new rules, including Republicans and the nonprofit Civil Liberties Foundation for Individual Rights in Education, celebrated them as a balanced approach to Title IX gender equity law. But Democrats and assault advocates, including the National Women’s Law Center, have argued that the regulations would discourage students from reporting assaults.
Months ago, President-elect Joe Biden vowed a “quick end” to the Trump administration’s Title IX regulations if he took office. His campaign’s policy director, Stef Feldman, told reporters last month that Biden plans to “come back and build on” the policies of the Obama administration, which emphasized the rights of the accusers and provided schools with more means to adjudicate allegations of sexual misconduct.
However, given that Education Secretary Betsy DeVos set up her framework through a formal rule-making process, unless there is action from Congress, the The Biden administration will have to follow the same procedures to revise Title IX regulations, which could take as long as two years. DeVos said his team were “methodical about our rule making and regulatory actions” to make it more difficult for a later administration to make changes.
The ministry argued this week that getting rid of the regulation would be “a step backwards for all students,” and argued that the rule benefits victims by requiring schools to have “a fair, transparent and reliable process to deal with Title IX complaints ”.
“Getting rid of the DeVos Title IX rule means ignoring the consensus decisions of the Supreme Court, dozens of lower court decisions and academics from across the political spectrum,” said Angela Morabito, spokesperson for the department. . “Getting rid of the DeVos rule is sending a clear message that due process and fairness don’t matter.”
The Trump administration’s regulations, which came into effect in August, require colleges to set up court-type hearings, in which accusers are cross-examined by a person representing the accused, to try the cases of the accused. sexual assault. In addition, the regulation uses a narrower definition of sexual harassment than what is prohibited in the workplace.
On Thursday, a lawsuit brought by a group of nonprofit victims’ rights organizations challenging the legality of Title IX settlements will go to trial in federal court in Massachusetts. Separately, 18 states and the District of Columbia have sued DeVos to block settlements in a case set to continue in the spring.
Lawsuits offer a potential shortcut to getting rid of regulation.
Since the litigation over Title IX settlements will likely continue into the spring, the Biden administration may agree to put the rule on hold, effectively killing it. The administration could then publish its own framework to replace it. However, Republican attorneys general or other groups could intervene in the dispute and demand that a federal judge rule that the settlement be enforced.
R. Shep Melnick, a professor of political science at Boston College who has studied the history of Title IX, said that another possible strategy that Biden’s appointees could pursue is a two-tiered approach, in which they progress by creating a new framework while issuing guidance in the meantime, to tell schools how to get around current regulations.
“Under the Obama administration, the Office of Civil Rights issued a number of affirmative action guidelines, basically saying that’s what the Supreme Court said and we want to point out how much leeway the courts have left it open, ”Melnick said.
Federal courts have ruled that Title IX requires K-12 schools and colleges to deal with reports of sexual harassment and assault. Previous presidential administrations have issued guidelines on what should happen when a student reports an allegation of sexual misconduct, but under President Donald Trump, the education department has abandoned the recommendations and issued formal regulations.
The vast majority of the more than 124,000 comments submitted before the rule’s finalization this year were critical of DeVos’ regulations. No victims’ rights organization supported them. University presidents, including Trump ally Jerry Falwell Jr., then head of Liberty University, have urged the government to cut regulation, saying the new rules tie their hands too much. Kindergarten to Grade 12 school groups have warned that because regulations limit when the federal government can find a school in violation of Title IX, more students would turn to potentially costly lawsuits to the districts.
School administrator organizations are now urging the incoming Biden administration to repeal DeVos Title IX regulation, as are student activists.
“There is a sense of urgency we hear from students and survivors who want this to go away, and how quickly can it go,” said Tracey Vitchers, CEO of It’s On Us, the anti-rape initiative launched by Biden in 2014. “There too must be a balance of law enforcement.”
During the Obama administration, Biden became the face of the Education Department’s efforts to combat sexual assault on campuses.
He unveiled and defended a 2011 directive that ordered schools to put in place grievance processes, discouraged schools from allowing accused persons to directly question their accusers in hearings, and instructed schools to complete investigations in 60 days, among other provisions. Many victims’ advocates have praised the advice as crucial to upholding the civil rights of students, while a loose coalition of conservatives, human rights activists, lawyers, law professors and Civil liberties groups criticized it, saying it did not put enough emphasis on due process.
Biden’s campaign platform this year called for the reinstatement of the 2011 directive, but victims’ rights groups say the administration needs to do more.
“Just going back and forth is not really the right answer, although it does seem practical,” said Laura Dunn, a victims’ rights lawyer who has been pushing for stronger title protection. IX under the Obama administration.
Since 2011, student activists have put increased pressure on schools to do a better job in the face of sexual violence. Court rulings have also placed specific requirements on colleges and universities in some states. Meanwhile, changes in the way students communicate with each other have opened up new avenues for bullying.
“Dating apps like Tinder didn’t exist, just as an example,” Vitchers said. “It’s just a very different world than it was 10 years ago.”
In addition, the advocacy community has become increasingly interested in alternative options to address sexual violence, such as restorative justice, a process in which perpetrators confess to those they have assaulted in the presence of trained facilitators.
“Times have changed and we want to be sure that Title IX regulations evolve and stay at the same level as we are now,” said Kenyora Parham, executive director of the End Rape On Campus advocacy group.
Biden also pledged to take regulatory action to implement “annual, age-appropriate education on healthy relationships and affirmative consent” in K-12 public schools and to push for legislation that would require schools to improve sexual assault reporting practices. However, supporters and pundits say any legislation addressing sexual misconduct in schools is far from over if Democrats don’t take control of the Senate.
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