Updated March 10, 2021 at 5:27 PM ET
A move by the Biden administration to change the way cases of sexual assault and harassment are handled by schools is drawing both cheers and fears. Acting on a campaign promise, President Biden has ordered education officials to start considering how to rollback Trump administration rules that bolster the rights of the accused and limit the cases schools have to handle.
It's only been about six months since former Education Secretary Betsy DeVos put her rules in place of the Obama administration's, and now, Biden is poised to flip things again.
"We're buckling up for what comes next," says Sage Carson, manager of "Know Your IX," an advocacy group for students protected by Title IX, the 1972 law that bars gender-based discrimination in federally funded colleges, universities and K-12 schools. Carson says shortly after Biden was elected, a transition official told her they're working with "intentional urgency" to roll back the rules. As a candidate, Biden called the Trump regulations an effort to "shame and silence survivors," saying they give "colleges a green light to ignore sexual violence and strip survivors of their rights."
The regulations exempt schools from having to respond to many off-campus incidents, and they narrow the definition of sexual harassment, so schools are obligated to respond to only the most egregious incidents. The new rules also beef up due process protections for accused students — for example, by allowing schools to require a higher standard of evidence, and by mandating that cases be decided by live hearings that include cross-examination through a third party.
Carson says those changes are a gross overcorrection.
"This wasn't about cementing due process rights," Carson says. "This goes beyond what is required. These were special rights just for students accused of sexual misconduct that stacked the decks against student survivors."
Carson says, the new rules are already having a chilling effect – making survivors less willing to report.
"Right now, what we're hearing from survivors is 'I don't want to go through that process, the process is very scary to me, and those rules are very intimidating.' "
But for all those like Carson who are expressing relief at the promise of change, there's fear on the other side from those who believe schools will revert to old practices and accused students will be "presumed guilty."
"Students, rightly so, are concerned that there will be a rollback back to an era with no live hearings, no ability to really probe the other person's narrative," says Patricia Hamill, a Philadelphia Title IX attorney who represents mostly accused students. "I think those are all great concerns for students who are accused of what is a very serious misconduct [that] can have lifelong consequences." Those who are expelled for such offenses may be unable to finish school, or find employment, she says.
Biden's executive order doesn't immediately impact the regulations; it calls for a 100-day review to "consider suspending, revising, or rescinding" any Trump administration rules that are "inconsistent" with the policies of the Biden-Harris administration.
Supporters of the new regulations, who spent years working to get them enacted, are now gearing up for battle once again.
"It's certainly an opening salvo," says Joe Cohn, legislative and policy director for the civil liberties advocacy group, Foundation for Individual Rights in Education. "But the administration will not be able to easily ditch the regulations, and we'll fight tooth and nail to make sure that they don't."
Because federal courts have affirmed students' due process rights, Cohn says, the Biden administration will be limited in how much they can change.
"Institutions will hear from us that they can't just disregard what the courts are saying," Cohn says.
Also, the way the rules were enacted means that any change will likely take time.
While the Obama administration issued "guidance," the current rules went through a much more laborious process to become official regulations, including a long public comment period, so any effort to change them, will most likely have to take the same route, which would take a year or two.
"This is going to be a long march," says Terry Hartle, senior vice president, Government Relations and Public Affairs for the American Council on Education, a trade group of colleges and universities.
The group is among those who object to the Trump administration rules. Hartle says they not only work against survivors, but they're also unworkable for schools who are not equipped to be turned into pseudo-courts.
"We're not judicial bodies," he says. "Campus officials [are] not trained to navigate these sort of quasi-legal disputes."
Schools are also eager to have the issue settled once and for all, so they don't have to keep flipping their policies back and forth with each administration.
Others are also hoping for some stability in the regulations, including longtime survivor advocate Laura Dunn, now an attorney representing student survivors.
Dunn was among those who helped draft the Obama administration guidance a decade ago, but even she says, simply reverting back to that now, is the wrong answer. New rules, she says, need broader buy-in from the start.
"I think a consensus effort will give us the best shot for rules that stop becoming this ping-pong ball on college campuses," Dunn says.
Even in these politically charged times, she says, it can be done, and has been done, as she saw herself. Just a few years ago, she was among a group convened by the American Bar Association that included advocates for survivors, the accused, and schools, who all sat down together to try to hash out a set of rules they could all agree on. Within just a half dozen or so meetings, over the course of about six months, she says, they managed to come up with language they were all willing to endorse.
"It wasn't pulling teeth, it was actually surprisingly pleasant," she laughs, recalling her "favorite backhanded compliment" from a participant on the other side. "He said, 'I knew your reputation before you showed up and I was really surprised, you were really reasonable.'"
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