Biden redraws US campus sexual misconduct rules

Administration moves to reverse Trump mandate for in-person hearings and expand protections to transgender students

June 23, 2022
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The Biden administration has issued its long-promised overhaul of regulations governing education-related sexual misconduct complaints in the US, promising to reverse a Trump-era version that expanded the rights of the accused.

The Biden policy includes a range of provisions outlawing discrimination on the basis of transgender status, increasing both the range of federal protections in education and the likelihood of fierce partisan pushback.

The administration also promised to pursue a separate new set of regulations governing gender in athletics, creating a parallel channel for one of the more politically charged subsets of such questions.

Among its key elements, the Biden overhaul would return the nation to the Obama-era policy – generally favoured by universities – that would permit but not require institutions to hold live hearings including cross examination in sexual misconduct investigations.

The administration announced its plans on the 50th anniversary of the day that President Richard Nixon signed the underlying law, known as Title IX, that forbids any discrimination on the basis of sex in any educational programme or activity that uses federal money.

Presidential administrations have the authority to write regulations that set out the specifics of how laws are enforced, and Title IX – once widely celebrated as a central force for equity in the US – is now becoming so politically charged that the rules have been getting revised with each transition in party control at the White House.

The US secretary of education, Miguel Cardona, announced his administration’s version of the regulations with an emotional tribute to pioneers such as Mary Cleave, a Nasa astronaut who credits her career to the opportunities enabled by Title IX, and his own cousin Alex, a transgender college student.

“Even as we celebrate all the progress we’ve achieved, standing up for equal access and inclusion is as important as ever,” the secretary told journalists.

Republicans began complaining about the plan even before its details were announced. They include Betsy DeVos, the Trump administration education secretary who changed the regulations during her time in office so that victims who reported sexual assaults could be compelled to face their alleged attacker at an in-person hearing.

Ms DeVos told the right-wing media platform Fox News that her version of the regulations “very clearly sets up a framework that’s fair, that’s balanced, that respects the rights of both individuals in a party with an issue”. She also said that an expansion of Title IX towards wider notions of gender rights would be a “bridge too far”.

The top-ranking Republican on the education committee in the US House of Representatives, Virginia Foxx, called the Biden approach an “unabashed embrace of bomb-throwing activism” that threatens to “demolish due process rights” and harm girls and young women by limiting their athletic opportunities.

Either way, the problem of sexual assault on US college campuses has long been understood as rampant. One survey in 2020 by the Association of American Universities found that 13 per cent of students experienced some form of non-consensual sexual contact by physical force or inability to consent.

The nation’s main higher education grouping, the American Council on Education (ACE), issued a statement celebrating the 50th anniversary of Title IX and endorsing the pursuit of “equity for all students”. It did not address the Biden announcement, though ACE in the past has made clear its opposition to the Trump requirement for in-person hearings, as well as its concern about the danger of the government constantly changing the rules.

“We will need to study the proposed rule, which numbers some 700 pages, carefully to see what we support and what we have concerns about,” said ​​Terry Hartle, ACE’s senior vice-president for government relations and public affairs.

The requirement for colleges and universities to adjudicate sexual misconduct complaints stems from Title IX’s mandate that they provide environments free of discrimination. The Biden plan would leave the institutions – not the accuser or the accused – the choice of whether in-person hearings were used.

The Biden plan also would expand the geographic responsibility of colleges or universities, so that they must investigate sexual misconduct complaints involving sanctioned events off campus or student-controlled facilities.

It also would let a single official at a college or university investigate and rule on complaints, and allow decisions based on a standard known as “preponderance of evidence”, meaning the confirmation of an allegation with a 50 per cent level of certainty.

The Department of Education said its regulatory language was the result of extensive efforts to find common ground that would not lead to constant adjustments during changes in administrations. That process included a “week-long nationwide virtual public hearing” last year, along with “numerous listening sessions” and the review of tens of thousands of public comments, department officials said.

While the administration ultimately can determine the regulations, the process of implementing them still requires several months of formal public hearings and procedural hurdles. Those steps will be taking place at the same time as the US Supreme Court – with a heavily conservative majority – considers a case involving high school students that could refine how all educational institutions must handle sexual misconduct complaints.

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