Executive Order Directs Review of Trump Administration’s Title IX Rule

On March 8, President Biden issued an Executive Order (EO) titled, “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.” The EO sets forth the administration’s policy that “all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment.”

The EO directs the secretary of education to conduct a review, within 100 days, of all of the Department of Education’s actions “that are or may be inconsistent” with the administration’s policy as set forth in the EO. As part of that review, the EO requires the secretary of education to evaluate the Trump administration’s Title IX regulation and any related actions to determine whether they are consistent with the administration’s policy and to “review existing guidance and issue new guidance as needed on the implementation of the rule.”

The EO also calls for the secretary to “consider suspending, revising, or rescinding — or publishing for notice and comment proposed rules suspending, revising, or rescinding — those agency actions that are inconsistent” with the administration’s policy and to “consider taking additional enforcement actions, as appropriate and consistent with applicable law, to enforce” the administration’s policy set forth in the EO.

Background

Last May, after a three-year rulemaking process, former Secretary of Education Betsy Devos unveiled the Trump administration regulations, which changed how colleges and universities must handle allegations of sexual assault and harassment under Title IX of the Education Amendments of 1972. The regulations took effect on August 14, 2020, despite several lawsuits challenging their validity.

The regulation has received criticism from a wide array of stakeholder groups, CUPA-HR and other associations representing colleges and universities. Last November, CUPA-HR joined a letter led by the American Council on Education (ACE) highlighting steps the incoming administration could take “to terminate, revise, or replace a number of decisions that the Trump administration has put in place regarding higher education,” including addressing “aspects of the Title IX regulations that are deeply problematic and that micromanage campus processes in an inflexible manner and undermine college and university efforts to effectively, fairly, and compassionately address the problem of campus sexual assault.”

What’s Next

President Biden’s action — which comes one week after his newly sworn in secretary of education, Miguel Cardona, received a letter from 115 Democrats urging the secretary to “prioritize replacing” the prior administration’s Title IX rule — is the first he has taken to fulfill his campaign promise to put a “quick end” to the regulation.

As the Department of Education begins its review of the Title IX rule, CUPA-HR will monitor and keep members apprised of any actions the department takes in response.