At It’s On Us we recognize students have faced immense challenges in understanding and navigating their Title IX rights as it pertains to campus sexual assault over the last four years. While we believe President Biden will work to fulfill his campaign promise to undo the harmful Title IX rule enacted by the last administration, we also know the process to do so will be complicated and take time.
This page will be updated regularly with the most recent information students need to understand where the Department of Education is in the Title IX rule reform process, and what you can expect moving forward.
This page is intended to serve as a living FAQ. If you have any questions that are not answered below, please send them to [email protected] and we will work to provide answers and place them on this page.
Q: Is the DeVos-era Title IX rule still in effect?
A: Unfortunately, yes. Because of the way the last administration went about their Title IX reform efforts, the Biden-Harris administration cannot simply undo the rule change (as much as we wish they could!).
We strongly encourage students to advocate with their colleges and universities to have their schools, when possible, commit to adhering to the least harmful options in the Title IX rule. For example, schools are given the option of using the preponderance of evidence or the clear and convincing standard for adjudicating sexual misconduct complaints under Title IX. Students should be advocating for their schools to use the preponderance of evidence standard in this case.
Q: But what about the March 8, 2021 Executive Order on Title IX?
A: On March 8, 2021, President Biden issued an Executive Order (EO) directing the Department of Education to work with the Department of Justice to review existing regulations, orders, guidance documents, policies, and any other similar agency actions related to Title IX and campus sexual harassment, including sexual violence. The actions taken by the Department of Education will include a review of the DeVos-issued Title IX rule that went into effect on August 14, 2020.
Q: How long will the review process take?
A: The EO requires the review process to be completed within 100 days.
Q: What is the goal of the review process?
A: President Biden has made it clear in his EO that students have a right to an education free from sexual harassment, including sexual violence, and discrimination based on their gender identity. The goal of the review process is to determine whether or not the existing Title IX rule and associated documents actually uphold these rights — our gut says they don’t — and for the current Department of Education to make recommendations on what actions can and need to be taken to return Title IX to it’s true intent: protecting students from discrimination, including protecting them from sexual harassment and violence, based on their gender.
Q: What are the possible outcomes of the Title IX review?
A: President Biden’s EO listed a few possible outcomes of the Title IX review process, that include suspending, revising, or rescinding — or publishing for notice and comment proposed rules suspending, revising, or rescinding — any existing rules or agency actions that are inconsistent with ensuring students have an education free from sexual harassment, including sexual violence.
Q: Does the EO take into account the ways sexual harassment and sexual violence affects students differently based on the intersections of their identities, such as race, disability, sexuality, and gender identities?
A: Yes! The EO specifically calls out students of color, students whose nation of origin is not the United States, students with disabilities, and students who are LGBTQ as those who may face intersecting challenges in seeking resources and support following an incident of sexual harassment or violence. The EO states the Secretary of Education shall consider taking additional actions in relation to Title IX that account for other forms of discrimination that can affect these student populations when they experience sexual harassment or violence.
Q: Why didn’t President Biden revoke the DeVos Title IX rule immediately?
A: The last administration completed what is known as a rulemaking process on Title IX. The federal government grants permission to their various departments, including the Department of Education, to issue rule changes to existing laws. Rule changes to existing laws can happen for a variety of reasons, including new research or information has become available, culture and society have changed, or because of the advocacy of outside organizations, to name a few.
By completing a rulemaking process the DeVos Department of Education functionally changed the Title IX law. This change has made it more difficult, but not impossible, for the Biden-Harris administration to undo the harmful rule change. The EO was issued to begin what we anticipate will be a lengthy process by the current Department of Education to undo the existing rule and replace it with one that actually protects survivors and upholds campus safety.
To learn more about the federal rulemaking process, check out this document from the Federal Register.
Q: Has the Department of Education issued any statements about the EO?
A: Yes! Acting Assistant Secretary, Office for Civil Rights Suzanne Goldberg published a blog on the Department of Education website stating their commitment to completing the directives outlined in the EO.
Q: How can students engage in the Title IX rule review process?
A: The Department of Education is working to create opportunities to hear directly from students on the existing Title IX rule. As they become available, It’s On Us and our partner organizations will be helping to amplify these opportunities. In the meantime, we encourage you to sign up for the It’s On Us newsletter to receive updates.
Q: What are some of It’s On Us’s priorities for the Title IX rule review process?
A: It’s On Us’s Executive Director Tracey Vitchers published a blog post on what we would like to see as part of the Title IX rule review process. You can check it out here!
Q: Didn’t the Department of Education announce new actions on Title IX in April 2021? What are they?
A: Yes! On April 6, 2021 the Department of Education Office for Civil Rights announced the actions they will be taking to fulfill President Biden’s EO.
These actions include: (1) A commitment to to hold a virtual public hearing with student survivors, advocacy organizations, administrators, parents, and other stakeholders to obtain feedback on the existing Title IX rule; (2) A plan to issue a Q&A guidance document on the in-effect DeVos Title IX rule, with the goal of helping colleges and universities to understand where they have discretion in application of the rule, and in turn, do the least harm to student survivors and campus safety while the rule is still in effect; and, (3) A statement that they anticipate following the completion of the DeVos-era Title IX rule that the Department will issue a new Notice of Proposed Rulemaking or NPRM to amend the rule.