Biden Team Begins to Undo DeVos Policies on Campus Sex Assault

The Biden administration is taking the first steps this week to unravel former Education Secretary Betsy DeVos’s controversial policies that critics say had a chilling effect on victims of sexual assault on college campuses.

The department, now led by Secretary Miguel Cardona, also plans to rewrite Trump administration rules that limited loan relief to student borrowers and weakened accountability measures for vocational programs that performed poorly.

Cardona on Monday will kick off a week of hearings on Title IX campus sexual misconduct policies, followed by additional public forums later this month on student loan programs. Revisiting and changing those rules is likely to take years to complete.

New Title IX regulations will also be harder for a future administration to overturn, unlike Obama-era guidance that DeVos scrapped with the stroke of a pen.

College groups and advocates for survivors of assault have called for the Education Department to overturn the Title IX regulations DeVos put in place last year. Those rules narrowed the scope of sexual misconduct complaints that colleges and schools must investigate. President Joe Biden in a March executive order directed the agency to review the regulations, after pledging during his campaign to jettison the DeVos rule.

Biden’s nomination last month of Catherine Lhamon, the Education Department’s assistant secretary for civil rights from 2013 to 2017, for that same role also reflects a commitment to restoring the Obama administration’s approach to campus sexual misconduct that prodded colleges to investigate allegations more aggressively.

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“This is an important opportunity for the department to set the record straight and to get more information on how students have been impacted not only the DeVos rule by Covid as well,” said Shiwali Patel, an attorney at the National Women’s Law Center and former civil rights official at the Education Department.

Shiwali’s group opposed the DeVos rule and has backed an overhaul by the Biden administration.

Higher Bar for Complaints

DeVos’s regulations sought to bolster protections for students accused of sexual harassment or assault on campus. She cited a spike in lawsuits filed by punished students to justify scrapping President Barack Obama’s policies, which aimed to pressure colleges and K-12 schools into dealing more actively with sexual misconduct on campus.

The DeVos Title IX rule allows schools to opt for a higher standard of evidence to assess sexual misconduct claims. It also requires that colleges offer accused students the right to a live hearing on campus where accusers could be cross-examined by an alleged assailant through a third party.

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Advocates say those regulations, which took effect in August, will discourage survivors of assault from coming forward. Colleges, meanwhile, warned that imposing hearing requirements would mandate that institutions set up a quasi-court system on campuses that they are ill-equipped to manage.

The DeVos regulations “represent just a massive reordering of the entire Title IX compliance landscape for college and universities,” said Anne Meehan, assistant vice president for government relations at the American Council on Education, the chief lobby group for colleges in Washington.

Due Process

DeVos made the rules final three years after she announced she was charting a new course on Title IX policies. The Education Department had to consider massive public feedback, receiving more than 120,000 comments on proposed regulations.

A similar protracted process could unfold under the Biden administration. That means that colleges will be obligated to follow DeVos regulations for much of the current administration’s term—although the Education Department indicated when it announced the hearings that new guidance on Title IX may be forthcoming.

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The rulemaking plans are an improvement over the approach of the Obama administration, which issued Title IX policies through nonbinding guidance without seeking formal public comment, said Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, a civil liberties group that has backed more protections for accused students.

However, he said the Education Department would ideally allow more time to judge the effectiveness of the new regulations after the Covid-19 pandemic that led colleges and K-12 schools to close campuses last year.

“It’s premature to know whether or not these hearings are a formality and largely public theater to pave the way for policy changes they plan on making, regardless of what is said,” Cohn said.

To contact the reporter on this story: Andrew Kreighbaum in Washington at akreighbaum@bgov.com

To contact the editors responsible for this story: Robin Meszoly at rmeszoly@bgov.com; Anna Yukhananov at ayukhananov@bloombergindustry.com