Biden order could change how colleges handle sex misconduct

WASHINGTON —  President Biden on Monday ordered his administration to review Trump administration rules around campus sexual assaults that bolstered the rights of the accused and narrowed the scope of cases colleges must address.

In an executive order signed Monday morning, Biden directed the Department of Education to review policies implemented by the Trump administration, including changes to Title IX regulations that prohibit sex discrimination in federally funded institutions.

Biden directed the agency to review all policies “that are or may be inconsistent” with the objective to prevent sex discrimination in education. He focused on gender equity during his campaign and promised to strengthen Title IX if he won the White House.

Biden also signed a second executive order formally establishing the White House Gender Policy Council. His transition team announced his plans to create the council before he took office.

“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 the Gender Policy Council, told reporters at a White House briefing.

The order directing the review of Title IX could pave the way to a major shift in how colleges handle allegations of sexual misconduct moving forward.

Trump’s Education secretary, Betsy DeVos, in 2018 rescinded an Obama-era administration standard in cases of reported sexual assault from requiring a “preponderance of evidence” — meaning it is more likely than not that sexual harassment or violence occurred — to “clear and convincing evidence.”

The DeVos changes reduced the liability of colleges and universities for investigating sexual misconduct claims and bolstered the due process rights of the accused, including the right to cross-examine their accusers through a third-party advocate at campus hearings.

In 2011, Biden, as vice president, with then-Education Secretary Arne Duncan, laid out the legal guidance of what was expected of college campuses in response to allegations of sexual violence on behalf of President Obama’s administration.

With the Education Department review, Biden’s intent is to set policies to help ensure that students have an environment free from sexual harassment and without discrimination on the basis of sexual orientation or gender identity, according to one White House official who briefed reporters on the orders.

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

Although the order sets the stage for a major policy shift, change is unlikely to come quickly. Any effort to rewrite DeVos’ rules would have to go through a federal rulemaking process that can take years to complete; it took three years for DeVos to reverse the Obama guidance and complete her own set of rules.

The order establishing the Gender Policy Council comes after Trump disbanded an office created during the Obama administration called the White House Council on Women and Girls.

While the new council is a resurrection of the Obama-era one, the new name is an acknowledgment that inequities can affect people of all genders, an administration official said. Still, the council will primarily focus on issues facing women and girls because of “disproportionate barriers” they face, the official said.

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The new council is tasked with helping push gender equity on the administration’s domestic and foreign policy efforts. Some of the issues the council will address include sexual harassment, structural barriers to women’s participation in the workforce, gender wage and wealth gaps, caregiving issues that have disproportionately affected women and gender-based violence.

Biden signed the orders hours before delivering a White House address to mark International Women’s Day. He used his speech to celebrate the recent nominations of Air Force Gen. Jacqueline Van Ovost and Army Lt. Gen. Laura Richardson to serve as combatant commanders. If confirmed by the Senate, they’ll become just the second and third women to serve as combatant commanders in the military.

Biden also made the case that more needs to be done to improve conditions for women who serve, including dealing with the scourge of sexual assault and harassment in the ranks. Defense Secretary Lloyd J. Austin III has promised to make the issue a top priority as reports of sexual assault have steadily risen since 2006, according to Pentagon data.

Biden called the problem “nothing less than a threat to our national security.”

Ahead of Biden’s speech Monday, Vice President Kamala Harris marked International Women’s Day with a virtual address to the European Parliament, while First Lady Jill Biden, during a State Department ceremony, honored nearly two dozen women from around the world for demonstrating courage in pursuit of justice.