Biden orders to review Trump rules on campus sexual assault

President Joe Biden has ordered his administration to review federal rules guiding universities in their handling of campus sexual assaults.

In an executive order, the president directed the Education Department to examine rules that the Trump administration issued around Title IX, a federal law that forbids sex discrimination in education, and he told the agency to “consider suspending, revising or rescinding” any policies that fail to protect students.

At a White House briefing, Jennifer Klein, the co-chair and executive director of the Gender Policy Council, said: “The policy of this administration is that every individual, every student is entitled to a fair education, free of sexual violence, and that all involved have access to a fair process.”

During the presidential campaign last year, Biden had promised to put an “immediate” end to rules that were finalised in 2020 by Trump’s Education Secretary Betsy DeVos in response to guidance issued by the Obama administration.

Critics of the Obama rules said that they leaned too heavily towards accusers, and offered little protection or due process for students and faculty accused of sexual harassment, assault or other forms of misconduct.

In response, the Trump administration delivered the first-ever regulations on sexual misconduct. These rules were seen as a swing too far in the other direction: they narrowed the definition of sexual harassment, reduced the legal liability of colleges investigating misconduct claims and gave accused students the right to cross-examine their accusers.

Shiwali Patel, senior counsel at the National Women’s Law Centre, said: “This is an important step. The Title IX rules that took place under the Trump administration are incredibly harmful, and they’re still in effect.”

The policy of this administration is that every individual, every student is entitled to a fair education, free of sexual violence, and that all involved have access to a fair process

– Jennifer Klein, co-chair and executive director of Gender Policy Council

Republicans criticised Biden’s policy move, defending the DeVos rules. North Carolina Rep. Virginia Foxx, the ranking Republican on the House education committee, said: “The right to due process is bigger than partisan politics – it is a cornerstone of American democracy. By overturning these stakeholder-vetted, court-supported rules, key protections for victims and the due process rights of the accused would be jeopardised.”

According to both administration officials and higher education leaders, there are no clear plans on defining a fair process for the adjudication of sexual assault complaints.

There are also likely to be delays in implementing new rules. The president is unlikely to issue a blanket repeal due to the need to update existing laws, and the new Education Secretary Miguel Cardona will spend at least a year working on regulatory procedures to replace the Trump rules.

Joe Cohn, the legislative and policy director at the Foundation for Individual Rights in Education, said the new regulations reflected “a good-faith effort to try to make this process work for all students”.

He said: “There are students who are raped on college campuses, and there are students who are wrongly accused, and we should not be choosing between which of those groups we wish to give justice.”

Terry Hartle, the senior vice-president for government and public affairs at the American Council for Education, said: “What we’re fundamentally looking for is a regulation that does not turn colleges into courts, that allows us to treat both sides fairly and compassionately.

“We are not courts – we lack the expertise and legitimacy to pursue judicial functions.”