Joe Biden Has Vowed To Undo Betsy DeVos’s Title IX Reforms. Can He?
Last May, Education Secretary Betsy DeVos formally issued new rules regarding Title IX, the law that prohibits sexual harassment in schools. Though intended to clarify confusing and contradictory past federal guidance that had weakened due process protections for students accused of misconduct, the new rules drew swift condemnation from Democrats —who accused the Trump administration of harming sexual assault survivors. Joe Biden vowed to put a “quick end” to the reforms if elected president.
This has now come to pass: Biden will take office as the 46th president on January 20, 2021. There is every reason to believe that Biden—who was heavily involved in the Obama administration’s policy-making on this subject—meant what he said, and supporters of DeVos’s reforms should fully expect the new administration to do whatever they can to undermine them.
DeVos herself is fully aware of this. When I interviewed her for the November 2020 issue of Reason, she expressed serious doubts that a (then hypothetical) Biden administration would make good policies, on Title IX or any other education issue.
“There’s really no issue in education that he hasn’t had 40 years to address and solve, and he hasn’t,” said DeVos. “I can’t even imagine what new or positive thing he would bring to all of these issues.”
That said, it won’t be easy for the new administration to undo the reforms, which went through a multiyear review as required by the Administrative Procedures Act. Going back to the previous Title IX standards would require an equally involved and time-consuming process. Biden officials could signal to colleges and universities that they will ignore violations of the new Title IX rules, but that wouldn’t prevent students from suing their institutions for failing to follow proper procedures. Anything short of new legislation—which could be blocked by a Republican-controlled Senate—is likely to create mass confusion about which rules need to be followed, even as some courts have reached the conclusion that it is indeed mandatory for education officials to provide certain due process rights to accused students.
To recap: Title IX is a decades’ old federal statute that obligates schools receiving federal funding to protect students from sexual misconduct. During the Obama administration, the Education Department’s Office for Civil Rights vastly expanded the purview of Title IX, advising colleges and universities that their funding could be at risk if they did not make more aggressive efforts to investigate
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