What is the current state of federal Title IX policies?

Laurie Grobe

TW: Discussions of sexual assault, sexual violence

Editor's Note: This story first appeared in The Daily Texan's March 9 print edition.

President Joe Biden announced Monday he is planning to reverse former Secretary of Education Betsy DeVos’ changes to Title IX, the federal regulation that prohibits sex discrimination. 

Last summer, the Department of Education released extensive changes to Title IX under the direction of Betsy DeVos. These changes included narrowing the definition of sexual assault, removing off campus incidents from universities’ purviews and requiring a higher standard of evidence to prove assault occurred.

The UT System updated the definition of sexual harassment to severe and pervasive conduct that interferes with a student’s education to be in line with the new regulations, and revised the definition of “Other Inappropriate Sexual Conduct” to include behavior that falls outside the new definition. 

On Monday, Biden signed two executive orders creating the White House Gender Policy Council and directing the Department of Education, now led by Secretary of Education Miguel Cardona, to review sexual violence policies, particularly DeVos’ Title IX regulations. 

The Past: Title IX under DeVos

DeVos’ changes were criticized by advocate groups as cruel to survivors and not holding universities accountable for sexual discrimination and violence that occurs in their communities. 

Kaya Epstein, student government interpersonal violence prevention policy co-director, said DeVos’ changes did massive harm to survivors.

“What DeVos did to the Title IX rules is so vile,” Epstein said.

Norma V. Cantú, UT law professor and member of the Biden-Harris Transition’s “Agency Review Team,” said the increased attention to Title IX is informing people on the law and how they can seek recourse. 

“I always look for a silver lining whenever something looks cloudy, and this looks cloudy,” Cantú said. “There is some confusion because (the rules have) changed with every administration and President Biden has said it will change again.”

The Future: Title IX under Biden

Last October, Stef Feldman, a policy director for Biden’s campaign, said in a webinar that Biden would return to Obama-era education policies. Under the Obama administration, sexual violence was clarified to be sex discrimination and therefore prohibited under Title IX through a document titled “Dear Colleague” in 2011. 

Krista Anderson, UT System Title IX coordinator, said the 2011 Dear Colleague letter is policy guidance, not a change in the law itself. 

Epstein said the letter is the baseline for survivor protections.

“They fall short of where we should be in terms of prioritizing survivors and prioritizing cultural change,” Epstein said. “But it would still expand Title IX beyond Betsy DeVos’ rule of terror.”

Under DeVos, the 2011 Dear Colleague letter was rescinded as guidance and the Department of Education pointed to documents from 2001 for guidance on policy, Anderson said. 

“They were basically saying, ‘Everything from the Obama administration, don’t look at that,’” Anderson said. “This was all in 2017 … I feel like it’s burned in my memory.”

Over 100 members of Congress signed a letter Tuesday asking Secretary of Education Miguel Cardona to repeal DeVos’ Title IX rules. In January, Biden signed an executive order against discrimination based on gender and sexual orientation. 

Epstein said there needs to be immediate and specific action on Title IX.

“The fact that he signed this executive order on day one makes me think that he might be gearing up to bring not just Title IX, but issues of gender and sexuality to the front of his policy plan,” Epstein said.

One of Biden’s executive orders signed Monday directs the Department of Education to review DeVos’ Title IX regulations. According to the order, the Secretary of Education may rescind policies that do not prevent sex discrimination on college campuses. 

Anderson said if the Biden administration pursues changing DeVos’ Title IX policies, it would take years to reverse them and establish new policies. 

“Just as the previous administration has done, where they first issued a notice of proposed rulemaking in May 2018 and they weren’t able to finalize it until May of 2020,” Anderson said.