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Change is Near: What the Biden Executive Order Means for Title IX Misconduct Claims 

by Jonathan Feld, Robert Boonin, Donna McElroy, Ramon Bissmeyer, Andrea Frailey

Published: March, 2021

Submission: April, 2021

 



On March 8, President Biden took his first steps in reversing the Trump Administration’s Title IX policy by issuing an Executive Order 14021 (“Order”) directing the Secretary of Education to review the Title IX rules issued by the Trump Administration.


What does the Executive Order say?


The Order establishes the Biden Administration’s policy that “all students should be guaranteed an educational environment free from discrimination on the basis of sex.” The Order explains that “on the basis of sex” includes sexual harassment, sexual violence, and discrimination on the basis of sexual orientation or gender identity.[1]


In furtherance of this policy, the President directs the Secretary of Education and the Attorney General to review all agency actions (including regulations, orders, guidance documents, and policies) that may be inconsistent with this policy, and to provide a report to the Office of Management and Budget by June 16, 2021. The Order specifically addresses the rule issued by the Department of Education in May 2020 which expanded the rights of accused students and narrowed the definition of sexual harassment, among other sweeping changes. The President’s Order directs the Department of Education to review any guidance issued by the prior Administration implementing the rule and to issue new guidance as necessary to comply with the Biden Administration’s stated policy. Finally, the Order directs the Department of Education to “consider suspending, revising, or rescinding” any agency actions inconsistent with the Administration’s policy, and/or to propose new rules for notice and comment.


What does the Executive Order mean for Institutions?


The Order directs the Secretary of Education to review Trump Administration policies, but does not suspend any existing rules. All rules and guidance issued during the Trump Administration are therefore still in place. Until review is completed, institutions’ obligations for policies and procedures addressing Title IX complaints will likely remain unchanged.


The Order does however foreshadow a move away from the procedures put in place by the Trump Administration that many institutions found to be costly and burdensome. While not yet clear if the Biden Administration will revert fully back to the Obama Administration’s Title IX policies, it is likely the Biden Administration will strike a middle ground requiring institutions to respond to a broader class of complaints than the Trump Administration, while not requiring as many court-like procedures. Now would be a good time for colleges and universities to review their Title IX procedures and understand what allegations may compel an internal investigation to address complaints, as well as what procedures must be in place to protect the rights of the accused.


For now, institutions should stay tuned to Dykema’s updates on any guidance or requests for comment issued by the Department of Education. Any questions should be directed to Ray Bissmeyer,Donna McElroy,Robert Boonin,Jonathan Feld,Andrea Frailey, or your Dykema relationship attorney.



[1] Notably, also on March 8, President Biden issued a second Executive Order establishing the White House Gender Policy Council within the Executive Office of the President, a step further demonstrating his administration’s approach to prioritizing gender equality.


 


 

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