Biden Administration to Revisit Title IX Regulations
At long last, the announcement that so many were waiting for—with either anticipation or dread. Fewer than 50 days into his administration, President Biden dropped his charge to freshly confirmed Education Secretary Cardonas: review the Title IX regulations that went into effect in May 2020 for their consistency with Title IX. Not as tautological as it may seem, since there are differing views on what Title IX means, what its provisions require, and how its enforcement may legitimately differ, depending on whether it is a court proceeding or an administrative action.
President Biden’s announcement was not a surprise. After all, Senator Biden was the sponsor of the 1994 Violence Against Women Act. Vice-President Biden chaired the 2014-17 White House Task Force to Protect Students from Sexual Assault. And his administration includes the highest ranking woman in American Politics: Vice President Kamala Harris.
Secretary Cardonas has 100 days to make recommendations on what, if anything, needs to be changed. The “if anything” is lawyerly caution. No doubt there will be changes. The post-announcement chatter includes whether the new regulations will be rescinded, with a return the Obama-era guidance, or whether the Biden Administration will put its own stamp on Title IX regulations. The latter would be wise. Although rule-making is time consuming, it is a surer way to go than the Dear Colleague letter guidance that was used in the prior two administrations. Also, the new regulations have much to dislike, but their move away from universities categorizing nearly all employees as mandatory reporters is a wise step. And although this process is very polarized now, perhaps there is a way to craft a product that is neither court-like with court-like protections nor perceived as inherently biased towards the accused. Then both “sides” would be mad and perhaps a good outcome is achieved.