The Trump-era Title IX regulatory changes show promising progress by the Biden administration.
“The charges — 90 percent of them — fall under the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last bed was not quite right. ‘”
This utterly false and misleading statement was produced in July 2017 for the New York Times by former President Donald Trump’s Acting Assistant Secretary in the Department of Education’s Civil Rights Office Candice E. Jackson, the woman responsible for overseeing federal law enforcement requiring schools to act quickly and effectively to fight against sexual assault.
During the Trump-Pence administration, the Department of Education and the Department of Justice regularly sided with men accused of sexual assault and harassment. Education Secretary Betsy Devos adopted new regulations Title IX that offered unprecedented protections to students facing school discipline for sexual misconduct and left survivors of sexual assault and harassment behind.
In last year’s presidential campaign, the Biden-Harris administration sworn to overturn Trump’s regulations. And that is exactly what they are doing.
Earlier this month, the Department of Education began public hearings to determine improvements to Title IX enforcement. But less noticed are the actions the Biden administration is taking behind the scenes to strengthen Title IX protections for students experiencing sexual harassment and assault.
Last week, the Department of Justice, with the support of the Department of Education, filed a declaration of interest on behalf of the United States in a case brought by nine students against the University of Nebraska-Lincoln (UNL). The students allege that they were raped, sexually assaulted, sexually harassed and / or harassed by other UNL students, which they reported to UNL, but that UNL did not respond adequately to their complaints. When six of the students suffered retaliation from their peers for reporting the abuse, they reported the retaliation to UNL, but again, the university failed to adequately address the behavior.
The U.S. Expression of Interest opposes the UNL’s motion to dismiss the lawsuit and sets out positions on a number of unresolved areas of Title IX law where the courts are divided. The statement sets out how the Biden administration interprets Title IX and shows the difference a new president can make in government policy.
Contrary to the Trump administration’s repeated defense of those accused of sexual assault, the Biden administration’s expression of interest in the UNL case says the new administration expects colleges and universities to follow through rigorously the guarantee of educational equality of Title IX by responding quickly and effectively to sexual harassment and assault problems.
For example, the government maintains that:
- A claimant need not allege that an institution actually knew that the accused harasser (s) posed a prior risk of sexual harassment;
- A single case of sexual misconduct may be sufficient to satisfy the Supreme Court’s requirement of “omnipresence” when it comes to the rape or assault of a student by another student;
- Complainants who allege harassment on the basis of their sex need not allege hostility on the basis of their sex as well; and
- Peer-to-peer reprisals are prosecutable under Title IX, citing the case of the Fourth Circuit of Foundation of the Feminist Majority against Mary Washington University, who recognized that students who experience retaliation from their peers can sue for damages under Title IX when the institution is aware of the retaliation and responds with willful indifference.
These generous interpretations of Title IX law come as no surprise in light of the Biden administration’s choice of top DOJ and DOE appointments.
One of the main architects of the Obama administration’s strong Title IX policy on harassment and sexual assault was civil rights lawyer Catharine E. Lhamon, whom Biden has now reappointed in her former post as Assistant Secretary for the United Nations. civil rights at the Ministry of Education. This appointment is the opposite of the Trump administration’s appointment of rape apologist Candice Jackson to the post. Biden has also appointed another women’s rights advocate to the number three post in DOJ—Vanita Gupta as Assistant United States Attorney General for Civil Rights.
With Lhamon and Gupta at the helm, survivors can have confidence that the United States will stand up for women’s rights and social justice.