Miltenberg: “Legal Experts Say Biden’s Pushing Ahead to the Obama Past on Campus Rape Could Be a Mistake,” The Center Square


Earlier this year, President Donald Trump’s often embattled Education Secretary, Betsy DeVos, established new rules on handling sexual assaults on campus to strengthen protections for accused students, almost all of them men. Joe Biden, who was the Obama administration’s point man for the policies DeVos upended, has made his displeasure clear. “The Trump Administration’s Education Department … is trying to shame and silence survivors,” the Biden campaign platform declared. “Instead of protecting women,” it has “given colleges a green light to ignore sexual violence and strip survivors of their civil rights.” To “stand with survivors,” Biden has promised not only to restore a set of Obama-era “guidelines” to combat so-called campus “rape culture” – with compliance a condition of federal dollars – but to add to them. As president, his campaign literature states, he would push for legislation creating, among other things, “online, anonymous sexual assault and harassment reporting systems.” But as he works to restore and expand a “believe women” approach to sexual assault that DeVos and others criticized as a presumption of male guilt, Biden will face much more serious headwinds than the Obama guidelines did when first introduced in 2011 … “A real battle is shaping up,” Andrew Miltenberg, the lawyer who brought the case against Purdue, said in a Zoom interview. “On the one hand, you have Biden, the moving force behind the 2011 Obama policies who will attempt to roll back some of the regulations put into place under Trump, so we’re going to be revisiting due process and related matters, like investigations, hearings, and appeals.” “At the same time,” Miltenberg, widely viewed as a pioneer in this emerging field of law, continued, “you have a clear majority on the Supreme Court who will be sympathetic to the plight of young men accused of sex assault and who haven’t had an equitable opportunity to be heard. And you have Supreme Court Justice Barrett, who’s written the most significant decision on the matter to date. It’s setting up an interesting and potentially volatile dynamic.” Lawyers expect that as Biden strives to return to the Obama-era policies, confusion will abound as high schools, colleges, and universities try to figure out what set of policies they should follow because it would probably take years to rescind and replace the Trump/DeVos rules.

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