Changes to Trump-era Title IX regulations show promising progress from the Biden administration.
“The accusations—90 percent of them—fall into 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 sleeping together was not quite right.’”
This utterly false and misleading statement was made in July 2017 to The New York Times by former President Donald Trump’s acting assistant secretary of the Education Department’s Office for Civil Rights, Candice E. Jackson—the woman responsible for overseeing enforcement of the federal law requiring schools to act promptly and effectively to address 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 Title IX regulations that gave unprecedented protections to students facing school discipline for sexual misconduct and left survivors of sexual assault and harassment behind.
During the presidential campaign last year, the Biden-Harris administration vowed to reverse Trump’s regulations. And they are doing just that.
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 support of the Department of Education, filed a statement 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 they were raped, sexually assaulted, sexually harassed, and/or stalked by other UNL students, which they reported to UNL, but that UNL failed to respond adequately to their complaints. When six of the students experienced peer retaliation for reporting the abuse, they reported the retaliation to UNL, but again the university failed to adequately address the behavior.
The United States’ statement of interest opposes UNL’s motion to dismiss the lawsuit and sets out positions on a number of unsettled areas of Title IX law where courts are split. The statement indicates how the Biden administration is interpreting Title IX and shows the difference a new president can make in government policy.
As opposed to the Trump administration’s repeated defense of people accused of sexual assault, the Biden administration’s statement of interest in the UNL case indicates that the new administration expects colleges and universities to rigorously enforce Title IX’s guarantee of educational equality by responding promptly and effectively to sexual harassment and assault.
For example, the government argues that:
- A plaintiff need not allege that an institution had actual knowledge that the accused harasser(s) posed a prior risk of sexual harassment;
- A single instance of sexual misconduct can be enough to satisfy the Supreme Court’s “pervasiveness” requirement when it involves the rape or assault of one student by another student;
- Plaintiffs who allege harassment because of their sex do not also need to allege hostility based on their gender; and
- Peer retaliation is actionable under Title IX, citing the Fourth Circuit’s case of Feminist Majority Foundation v. Mary Washington University, which recognized that students who suffer retaliation from peers may bring claims for damages under Title IX when the institution knows of the retaliation and responds to it with deliberate indifference.
These generous interpretations of Title IX law are not surprising in light of the Biden administration’s choice of top appointments in the DOJ and DOE.
One of the key architects of the Obama administration’s strong Title IX policy on sexual harassment and assault was civil rights attorney Catharine E. Lhamon, whom Biden has now reappointed to her former position as assistant secretary for civil rights at the Department of Education. This appointment is the polar opposite of the Trump administration’s appointment of rape apologist Candice Jackson to that position. Biden also appointed another women’s rights advocate to the number three position at DOJ—Vanita Gupta as the United States associate attorney general for civil rights.
With Lhamon and Gupta at the helm, survivors can have confidence that the United States will advocate strongly for women’s rights and social justice.
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