Joe Biden

Joe Biden Has Vowed To Undo Betsy DeVos's Title IX Reforms. Can He?

The new president could weaken due process protections for accused students, but it won't be easy.

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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 Reasonshe 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 harassment and assault. The office's written guidance encouraged education officials to move toward a "single-investigator model," under which sexual misconduct claims were handled by a lone administrator rather than a panel. The guidance also discouraged the cross-examination of alleged victims by accused students and chipped away at due process. As a result, hundreds of students brought lawsuits against their universities for following guidance that they claimed violated their rights.

Under the Trump administration, DeVos made it a priority to fix this mess. Since the Obama-era guidance was just that—guidance, rather than a formal rule—DeVos was able to rescind it without much difficulty. Forcing colleges and universities to stop following the bad guidance, though, was a harder task. Education officials had to propose new rules, and then subject them to a lengthy public notice and comment period. It took from November 2018 until August 2020 for the rules to go into effect.

These rules—which require a kind of cross-examination by representatives for the accused, abolish the single-investigator model, and limit the scope of Title IX—can't be undone unless the government goes through the public notice and comment period all over again.

"The only way it could be done is through a Congressional Review Act or reregulating, which would have to go through the whole [Administrative Procedures Act] process again," said DeVos. "I think it would be very hard to turn back. It, obviously, would be terribly ill-advised, because what we have here is a very well-thought-out, balanced, fair rule that treats everyone rightly and fairly."

The Biden administration could announce publicly that it won't enforce the new Title IX rules: For example, Biden's secretary of education could clarify that no institution's federal funding will be at risk if they return to the single-investigator model. But this might not provide much assurance to universities, who could still face lawsuits from students in the event that they did use the single-investigator model. The fact that various courts have ruled in favor of the sorts of protections that the new rules enshrined is also a factor.

"Many of the due process protections, like the right to a live hearing and the right to at least some type of cross-examination, are things that courts have held are critical to due process and even to contractual promises of basic fairness," Samantha Harris, an attorney and senior fellow at the Foundation for Individual Rights in Education, told Reason. "So a new Department of Education can't just come in and say 'okay, we're back to single investigator' without running afoul of numerous court rulings from around the country."

Even opponents of the new rules acknowledge that universities will have to follow them for the foreseeable future. Jackie Gharapour Wernz, a former OCR attorney who wishes the new rules would not exist "for one day longer," nevertheless notes that "the risks of litigation for educational institutions if they do not follow the due process requirements in rules that remain in effect are too great to abide."

Harris, on the other hand, thinks it would be a serious mistake for the Biden administration to retreat to the previous standards, even if it were possible to do so.

"We cannot go back to an era where an accusation is tantamount to guilt, where students are expelled without so much as a hearing or the opportunity to see all the evidence against them, where investigators and panelists are trained using prejudicial materials that rely on sex-stereotypes," she said. "Fundamental fairness should not be a political issue."

If Biden were to turn back the clock on Title IX and due process, it would be somewhat ironic, since the president-elect has himself been accused of inappropriate behavior and arguably benefiting from the sort of presumption of innocence that was gravely threatened under the guidance issued by the Obama administration. As I noted after Tara Reade came forward with her allegation, it's quite likely Biden would have been found guilty if the case had been judged under the standards that he championed for an accused college student.

While Reade's allegation was the most serious and remains unproven, Biden has also been chided for less egregious violations of women. When I asked DeVos if she thought Biden could have faced a Title IX investigation as a student, she said, "Oh my gosh, he would have had hundreds of them," she said. "Hundreds of them."

That any negative interaction between two people could easily escalate into a sexual misconduct investigation—as long as it occurred on a college campus, or involved college students or faculty—was one of the major reasons for revising Title IX. Addressing this was an important legacy of the Trump administration, and one that will probably endure for some time, though don't be surprised if Biden makes a go at them.

NEXT: In Pennsylvania, the Trump Campaign's Search for Voting Irregularities Turns Increasingly Desperate

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  1. Of course he can. Title IX went apeshit under Obama, Devos attempted to rein it in… Biden can make it go apeshit again.

    1. Turns out our institutions are merely one “dear colleague” letter away from being completely disfigured.

      1. Why not? We were only one mask mandate from turning Americans into Nazis.

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    2. Soave thinks biden is winning… ecause liars in media said so.

      Trump just won NC, AK, GA, and AZ today.

      US senate has AK and NC us senators added today. Georgia adding two US senators. Pence breaking senate ties until jan 2025.

      1. Where is the AZ update?

      2. Trump has hopelessly lost AZ and GA, sorry.

  2. I’m old enough to remember when Democrats supported due process.

    1. They support due process for regular crimes. But if some “critical theorist” is able to cook up a story about how a crime “perpetuates systems of oppression”, they turn so Tough On Crime that Dirty Harry would be urging restraint. All you need to do is claim a crime is a form of oppression and due process goes out the window for them.

      1. Yeah, but that’s fairly new, even among Democrats. 10 years ago no one outside of academia would know what the hell you are talking about.

        1. “10 years ago no one outside of academia”

          And 10 years ago many of us were raising concerns that these ideas would inevitably spread into other institutions, and were ridiculed for it by…

          1. And 10 years ago many of us were raising concerns that these ideas would inevitably spread into other institutions, and were ridiculed for it by…

            This is 100% true. But consider what this means for the people initiating that ridicule. How many oppose the changes now that their supposed reason has proven false? Somewhere between 0% and .0000001% which shows they support the underlying facts. So now we know essentially everyone involved supported the elimination of due process and judging guilt based on victim hierarchy identity. There’s a lesson here that whenever people object to opposing something because it isn’t important enough to oppose everyone should understand that’s a pretext and they support the outcome even though they aren’t willing to say so publicly.

            1. How many oppose the changes now that their supposed reason has proven false? Somewhere between 0% and .0000001%

              I’m going to say it’s a lot more than that. Way too many people just swallow this shit, but I’ve been surprised how many people don’t.

              1. That percentage is of the population who argued against opposing stupidity when it was still stoppable. Lot’s of people recognize this is stupid. Zero of them criticized efforts to stop stupidity because it didn’t effect enough people yet.

          2. Well, it did seem pretty ridiculous at the time. But there has been a pretty good anti-PC thing for a long time. People knew about that part of it. It is a damn shame that people didn’t take it more seriously.

      2. You spelled Dirty Harris wrong.

    2. When would that be? Up until Nixon in 1968, more or less, the Democrats were the White Supremacist party of segregation. Then they became the Richard Daley party of oppression. It wasn’t until Reagan got elected that they found a new bogeyman to replace blacks and hippies, who became their new heroes. But I don’t think even then they cared about due process. Clinton started their wokening, but slowly, and not for women who claimed to be Bubba’s victims; no due process for them!

      And the next Democrat President was Obama, who wasn’t woke but is forgiven as the light bringer.

      Nope, no due process from the Democrats.

      1. Democrats are still practicing segregation.

    3. They support due process for their side. Not anyone else.

      There’s nothing sincere or good-faith about the left except their desire to control you.

    4. Eddie: “You mean you could’ve taken your hand out of that cuff at any time?”
      Roger Rabbit, Democrat: “No, not at any time, only when it was funny.”

      They support due process only when it suits them. Otherwise they can’t stand the loss of their ability to lord over their subjects.

  3. Pen and phone, baby.

    1. That’s it!! Title IX review for you, buddy!

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  5. “Evil is as . . . uh, you know, the thing.”

  6. Great, let’s start off by undoing all the good things that happened under Trump.

    1. I have it on good authority, from a close friend, that nothing good happened under Trump.

      1. What!?!? Biden getting elected by the media before the Electoral College vote was not good?!?!

    2. Yeah, never saw this coming. Seriously, what exactly did you expect them to do first after getting rid of Hitler?

      1. Where did I say it was unexpected?

        1. I guess you didn’t.

    3. Why would Trump undo everything he did first term during his second term?

  7. First part:
    “Going back to the previous Title IX standards would require an equally involved and time-consuming process.”

    Uh, Robby, can you tell us WHY they would not just what they did the first time?

    Second part:
    “To recap: Title IX is a decades’ old federal statute that obligates schools receiving federal funding to protect students from sexual misconduct. ”

    Text of Title IX; “No person in the United States shall, based on sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

    Unless you include extramarital sex as an ‘education program or activity’, there is no authority for colleges to be the sex police.

    1. That should really be the main issue here. The actual text of the law has nothing to do with any kind of misbehavior among students (unless the schools are treating misbehavior differently based on sex, which one could argue is exactly what the Obama era guidance encouraged).
      And it’s not as if the intent of the law wasn’t clear. It was to ensure that females got as much access to sports and other activities as males. Even saying that it requires equal spending on men’s and women’s sports seems like a bit of a stretch.

    2. Question, would they have to go through the process Devos did to reverse her policies? And would this require an actual Secretary of Education? If so and the Republicans keep the senate just don’t confirm any new Secretary’s.

      1. For most purposes an Acting Secretary has the same authority as a sitting Secretary.

  8. This has now come to pass: Biden will take office as the 46th president on January 20, 2021.

    No Soave, it has not, as a factual matter.

    Assuming the hypothetical, I would think a Biden/Harris administration will receive exactly the same treatment that POTUS Trump’s administration has gotten from the judiciary. Any Title IX change by Biden/Harris will immediately result in protracted litigation to challenge it, with nationwide injunctions on enforcement.

    And of course, APA will be strictly and scrupulously enforced.

    1. I think it’s just a matter of time before the propriety of nationwide injunctions will be closely examined. But, of course, now it will be Biden’s opponents moving to enjoin the President-elect’s policies. And they’re not going to be filing in the US District Court in Northern California. So long, San Francisco. Howdy East Texas.

      1. Concur on national injunctions. Justice Thomas has already declared they need to go. They’ll go. Sooner or later, the right case will come along.

        In the meantime though, I anticipate a Biden/Harris administration getting tied up in legal knots, just as POTUS Trump had to contend with for the last four years.

  9. Soave thinks democrats will go thru the same process that Republicans did nope what Dems say go and is law no arguing period.

  10. Last May, Education Secretary Betsy DeVos formally issued new rules regarding Title IX, the law that prohibits sexual harassment in schools.

    Title IX does not prohibit sexual harassment in schools. It prohibits gender discrimination in education. So it prohibits teachers or counselors discouraging women from physics solely or in part because they are women, or having different requirements based on gender.

    It has nothing to do with sexual harassment.

    1. It prohibits gender discrimination in education.

      No it doesn’t, see the full text above. I have been lectured for the last few years that sex and gender are as different as night and day. The language was chosen deliberately in spite of all the efforts underway to now pretend they are the same thing.

      And the tortured logic that equated sexual harassment with No person…shall…be excluded from participation in…any education program has long since been established.

  11. Oh well let’s see, Obama said it, Trump undid it, so Biden will double down. And the courts will take years to process it so I imagine many many college age men will be in much trouble. Best just to keep your pants zipped and ignore them bitches.

    1. Obama did it with a dear colleague letter. Trump did it through APA. Biden will do it with a memo.

    2. Ignoring the bitches won’t work. If a man can be charged with rape without the bother of actual evidence, it doesn’t matter if he had sex with her or not. He could have been in another state and it won’t matter if he doesn’t get a fair hearing from “believe all wymin” college admin.

  12. These rules…can’t be undone unless the government goes through the public notice and comment period all over again.

    This is a fantasy. The prior rules should never have been effective since they were issued illegitimately. But they were followed because the effected institutions were allies of the DOE radicals and desired this regulation. This there were no legal challenges which almost certainly would have won. The adversarial check and balance failed because these groups are not independent but rather colluding to achieve a policy they could not enact legitimately via legislation.

    Collusion between the DOE and target institutions will similarly defeat efforts at reform. The DOE will re-issue the prior letter aa regulation. The public response period is something like 60 days. At the end of the 60 days the DOE will enforce their preferences while ignoring any objections, all of which will come from outside higher ed. The requirements don’t have any force other than the expectation the adversarial process will ensure the parties are trying to reach the best solution. As we saw from the initial issuance this is false. Jumping through the dance again will not change the result.

    1. Would this require an actual Secretary of Education? If so and the Republicans keep the senate just don’t confirm any new Secretary’s.

      1. I don’t think it does. The initial Dear Colleague letter was signed by an Assistant Secretary, and in the absence of a Secretary Biden can give the department it’s directives directly. All Biden needs is someone willing to initiate the process. And there will be zero problem finding a member of the bureaucracy to do whatever is necessary to push the far left’s agenda.

  13. My gripe is with the States, even Texas with a Republican majority did nothing to blunt Obama’s dear colleague letter. I would assume state schools get more money from the state than the feds and if they mandated due process or no funds then they would have an incentive to tell the DOE what they could do with the letter. But what we got from them was silence. Although maybe it will be different this time around…I understand the GOP head booted the potential majority leader because he wanted to work with the Dems too much.

    1. even Texas with a Republican majority did nothing to blunt Obama’s dear colleague letter

      Even in Texas (and Alabama and Kansas…) the left controls the education system.

    2. The universities all depend on federal research grants to keep things running.

  14. GOD NO. Young Men should not have to face Expulsion and black listing on accusation alone.

    1. Enjoy the senile crook president and his corrupt prosecutor sidekick

  15. I do not consent to be gaslighted by Soave or the other commenters. I hope the new administration uses the most potent disinfectant available on every foul cabinet department, with appropriate referrals to the next A/G.

    It will be nice to have people who understand and care about the APA again.

    1. Hahahahahahahahahahaha

    2. American Psychological Association?

  16. Judging by comments posted on NYTimes articles on the topic, even most Democrats oppose the old rules. I doubt there’d be irresistible pressure on Biden to reimpose them.

    1. NYT has not even called AZ for biden yet. They called PA but the pressure was on to put Biden into a fantasy kingmaker scenario.

  17. Does Soave think the courts are going to uphold or even allow challenges to Biden Administration policy changes? We are going back to deference to the executive so fast it will make your head spin.

    1. The courts did not rely on the Obama administration’s “dear colleague” guidance, so I don’t understand what you’re trying to say here.

  18. “Joe Biden Has Vowed To Undo Betsy DeVos’s Title IX Reforms.”

    Anyone with a 8th grade education knew (or should have known) this would happen if Biden were elected.

    The key unanswered questions are why did Reason editors and writers trash Trump for the past four years, and why did they campaign for Biden for the past six months knowing he would dismantle all of Trump’s libertarian policies?

    1. It appears that answer to my questions is Koch’s $$$$$$$$$$.

  19. Doesn’t hair sniffing Joe have a few skeletons in the sexual abuse closet? Doesn’t seem like an interesting direction for him to go in. You can bet a thousand critics would drag every “victim” of his past “abuse” out of the closet to shake in public. I think Joe might look for other things to fuck up. I know he’s got a LOT of ideas on that.

  20. Democrats and due process? Something wrong with this sentence.

  21. “Last May, Education Secretary Betsy DeVos formally issued new rules regarding Title IX, the law that prohibits sexual harassment in schools.”

    “To recap: Title IX is a decades’ old federal statute that obligates schools receiving federal funding to protect students from sexual misconduct.”

    Soave, you’re a fucking moron. Title IX does no such thing.

    Title IX: No person in the United States shall, based on sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

    1. Ragnarredbeard: “Soave, you’re a fucking moron. Title IX does no such thing.”

      I would interpret Soave’s views as an act of will, a desire to believe, rather than the product of stupidity.

      I would compare them to the views of a faithful Catholic who believes sincerely in the Virgin Birth. The chief difference being that the Virgin Birth may be true.

  22. The cynical viewpoint:
    Since the new left has found so many rapists and sexual assailants in their midst, the title IX thing is a backhanded way to decriminalize rape. Note the “Don’t report it to the police. We will handle it all internally” approach, opening the way for the complete politicalization of rape, where unpopular, dissident, and politically unpopular students can be destroyed or disciplined institutionally with a false accusation, while genuine complaints can be soft-pedaled and kept out of the legal system in the case of a politically-connected perpetrator.

  23. I hope the next four years will remind every single moron who voted for Jojo that Republicans and Democrats are not equally bad. They both have many flaws that require our influence to correct, but there’s a difference in the order of magnitude and overall responsiveness that cannot be ignored. Democrats are not our allies.

  24. I bet Biden wouldn’t undo it if Hunter were still in college.

    1. The crooked moron and his crackhead son are not subject to the rules of normal behavior. Imposing rules would have no effect on them.

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  26. This is what happens when the “King rules by decree”, oops, excuse me, when the “President rules by executive order”. Every time you get a new one, they undo what the old one did.

  27. “Title IX, the law that prohibits sexual harassment in schools.”
    Title IX is a law prohibiting discrimination on the basis of sex, not harassment, in schools. The misapplication of Title IX covers a very large number of actions, including harassment,

    The perversion and application of Title IX occurred long before Obama administration. Under Obama, the big change from previous administrations was a great increase in pressure on schools to apply Title IX over-aggressively. Obama’s chiefs of the Education Department’s Office for Civil Rights were simply terrible, but right-wing and libertarian attacks focusing only on them have really obscured the absolutely disgraceful history of Title IX “adjudication.”

    Betsy DeVos did a relatively good job — relative to previous Education Secretaries and relative to other Cabinet heads in the Trump administration. Still, the actual changes she effected were mostly only a bit more than minimal, far from comprehensive, and contained too many compromises, although she did introduce a few significant changes, such as mandating some form of cross-examination and allowing legal representation for the accused.

    1. Should be:
      The perversion of the application of Title IX occurred long before Obama administration.

    1. It’s awesome to come across a blog every once in a while that isn’t the same out of date rehashed information. Thanks

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