Miltenberg: “Rethinking Title IX,” Inside Higher Ed


President Biden on Monday ordered Education Secretary Miguel Cardona to re-examine his predecessor Betsy DeVos’s controversial rule strengthening the rights of those accused of sexual harassment or assault on the nation’s campuses. And, raising the hopes of the rule’s critics, Biden said in his order that Cardona should consider “suspending, revising, or rescinding” it. To mark International Women’s Day, Biden signed an executive order spelling out that it’s his administration’s policy “that all students should be guaranteed an educational environment free from discrimination on the basis of sex.” And discrimination, he said, includes sexual harassment and violence, as well as discrimination based on sexual orientation or gender identity. The order directed Cardona to review within 100 days the Education Department’s regulations and policies to make sure they comply with the antidiscrimination policy. Biden specifically mentioned the department’s policy on Title IX of the Education Amendments of 1972. DeVos last May reversed the Obama administration’s policies on campus sexual assault and harassment, angering women’s and civil rights groups but bringing praise from those who believe the rights of the accused are often trampled upon by institutions … It was unclear how quickly the Biden administration could make any changes. Brett Sokolow, president of the Association of Title IX Administrators, said the Education Department’s typical arduous rule-making process could take a year or two and any new rule might not go into effect until 2024. The department could also go to the courts and seek a stay of the DeVos rule, or choose not to fight any of three lawsuits challenging the rule, he said. Earlier this month, 115 Democrats in the House, including Jackie Speier, from California, wrote Cardona urging him to seek a stay of the previous administration’s rule. At the same time, the Democratic lawmakers said Cardona should issue an interim guidance restoring key parts of the Obama administration’s guidance … The Education Department could also announce that it will not be enforcing DeVos’s rule, Sokolow said. Regardless of whether that happens, Andrew Miltenberg, a lawyer who represents students accused of misconduct, fears colleges and universities will read Biden’s policy as a direction to emphasize the rights of those alleging misconduct over those of the accused. “To me the actual wording of the regulations concerns me less than the predisposition of Title IX offices to see an alleged victim’s rights as a paramount,” Miltenberg said.

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