WASHINGTON (AP) — Schools and universities responding to complaints of sexual misconduct must return to policies created during President Donald Trump’s first term, with requirements for live hearings and more protections for accused students, according to new guidance issued Friday by the Education Department.
In a memo to education institutions across the nation, the agency clarified that Title IX, a 1972 law barring discrimination based on sex, will be enforced according to a set of rules created by former Education Secretary Betsy DeVos. The rules govern how complaints of misconduct are investigated and how to settle cases where students present differing accounts.
Colleges already have been returning to DeVos’ 2020 rules in recent weeks since a federal judge in Kentucky overturned the Biden administration’s Title IX rules. The court’s decision effectively ordered a return to the earlier Trump administration rules.
A statement from the Education Department called Biden’s rules an “egregious slight to women and girls.”
“Under the Trump Administration, the Education Department will champion equal opportunity for all Americans, including women and girls, by protecting their right to safe and separate facilities and activities in schools, colleges and universities,” said Acting Assistant Secretary for Civil Rights Craig Trainor.
The Biden administration sought to overhaul the rules and expand Title IX to protect LGBTQ+ students. It expanded the type of behavior that’s considered sexual harassment — a reversal of the DeVos policy, which used a narrower definition.
But a federal judge in Kentucky overturned Biden’s rule on Jan. 9, saying it was a presidential overstep and violated constitutional free speech rights by telling schools to honor students’ preferred pronouns. The judge, U.S. District Judge Danny C. Reeves, said there was nothing in Title IX suggesting it should cover anything more than it did when Congress created it.
Even before the decision, Biden’s rule had been halted in half the states amid legal challenges from Republicans.
The full text of the Title IX law is just 37 words long, but the federal government has added rules over the years explaining how it’s interpreted. DeVos’ policy adds 500 pages detailing how schools must address complaints and how the Education Department makes sure schools comply.
Already, the Trump administration has taken a hard turn on its enforcement of Title IX: On Tuesday the Education Department said it opened an investigation into Denver schools after the district converted a girl’s restroom into an all-gender restroom while leaving another bathroom exclusive to boys.
The new memo says even investigations that started when Biden’s rules were in effect “should be immediately reoriented to comport fully with the requirements of the 2020 Title IX Rule.”
The change was celebrated by advocates who said Biden’s rules did too little to protect accused students. The Foundation for Individual Rights and Expression said the 2020 rules will ensure fairness, highlighting a requirement that both parties be able to have a lawyer at campus hearings and to review all evidence.
“The return to the 2020 rules ensures that all students — whether they are the accused or the accuser — will receive fair treatment and important procedural safeguards,” said Tyler Coward, lead counsel for government affairs at FIRE.
Victims’ rights groups called it a step backward that will deter students from reporting assaults.
“Schools must step up to protect students in the absence of adequate federal guidance,” said Emma Grasso Levine, senior manager of Title IX policy and programs at Know Your IX, a student-led group.
Among the most controversial elements of DeVos’ policy is a requirement to hold live hearings where accused students can cross-examine their accusers through an adviser. The Biden rule had eliminated the requirement and made live hearings optional, though some courts had previously upheld an accused student’s right to cross examination.
More broadly, the 2020 policy narrows the definition of sexual harassment and the scope of cases that schools must address. It also reduces the liability for colleges, holding them responsible only if they acted with “deliberate indifference.”
Trump’s new pick for education secretary is Linda McMahon, a longtime Trump ally known for building the World Wrestling Entertainment professional wrestling empire with her husband, Vince McMahon. Her Senate confirmation hearing has yet to be scheduled.
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