New Biden executive order calls for review of Title IX rule

Dive Brief:

  • President Joe Biden signed an executive order Monday directing the U.S. Department of Education to evaluate whether the agency’s policies align with the administration’s promise to provide a college education free of sex-based discrimination. 

  • The order calls for a review of the Trump administration’s Title IX regulation, which covers how colleges must investigate and respond to sexual misconduct. The rule remains deeply unpopular among sexual violence prevention activists and higher education leaders.

  • Biden has pledged to undo the rule, but the legal route the administration would take to do so isn’t yet clear. 

Dive Insight:

Biden released a second executive order on Monday — International Women’s Day — that establishes a Gender Policy Council within the White House. It will attempt to advance gender-equitable policies and address systemic discrimination across the federal government, an administration official said on a call with reporters Sunday night.

Issues of gender equity and sexual violence have long been priorities for Biden. He was one of the faces of the Obama administration’s “It’s On Us” campaign to end sexual assault on college campuses. He also helped write the Violence Against Women Act — a cornerstone federal law that aims to protect women against gender-based assaults — while he was in the U.S. Senate in the 1990s.

Because Biden was an advocate in this space, it was widely expected he would unravel the Title IX rule developed under former Education Secretary Betsy DeVos, even before he announced on the campaign trail he would do so. Title IX is the federal law broadly banning sex discrimination in educational settings.

The regulation scales back the sexual violence cases colleges would need to investigate, including many off-campus crimes, and creates judicial-style procedures for evaluating them. 

DeVos and other due process advocates argued that the rule was necessary to correct imbalanced systems resulting from guidance issued during the Obama administration. They said many students, predominantly men, were unfairly accused and found guilty. 

The new executive order will help Biden’s Education Department decide the rule’s fate. The administration could choose not to enforce it, which would be more legally complicated, or pursue formal rulemaking to replace it. One Title IX expert told Higher Ed Dive that Biden would be better off initiating rulemaking, despite the process potentially extending years. A future administration could simply wipe away guidance, which doesn’t carry the force of law. 

More than 100 House Democrats recently wrote to the new education secretary, Miguel Cardona, asking him to work with the U.S. Department of Justice to block the rule. 

Biden signed an executive order in January affirming that gender identity and sexual orientation are protected classes under federal sex discrimination laws, a move observers viewed as a precursor for likely changes to Title IX policy. It called for federal agencies to review whether their rules aligned with this interpretation.

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