The Biden administration is beginning what could be a lengthy process to undo damaging Trump era policies for handling sexual harassment and assault on school campuses. In short, among other moves, the policies sharpen scrutiny of victims, allowing alleged perpetrators the right to have their side cross-examine accusers in a live hearing setting. These proposed cross-examinations would not be taking place in an actual court, and the whole idea obviously undercuts just about any reasonable effort to protect victims’ rights.
The Trump era policies also changed the relevant on-the-books definition of sexual harassment. In the Obama era, “unwelcome conduct of a sexual nature” was covered by anti-sexual harassment provisions, but with the Trump administration’s policies in place, sexual harassment has been formally defined as conduct that is “so severe, pervasive and objectively offensive” that the action “denies a person equal access to the school’s education program or activity.” Now, Education Department officials have formally notified relevant stakeholders and members of the public that they are reviewing the policies.
The department states that they “[anticipate] publishing a notice of proposed rulemaking” after the review period. In other words, their apparent tentative plan is for policy changes to follow their review process. Education Secretary Miguel Cardona commented as follows:
‘Building educational environments free from discrimination where our nation’s students can grow and thrive is a top priority of the Biden-Harris Administration. Today’s action is the first step in making sure that the Title IX regulations are effective and are fostering safe learning environments for our students while implementing fair processes. Sexual harassment and other forms of sex discrimination, including in extracurricular activities and other educational settings, threaten access to education for students of all ages. As Secretary, I will work to ensure all students — no matter their background, who they are, or how they identify — can succeed in the classroom and beyond.’
The Education Department’s announcement follows an executive order from President Biden last month that, as the department explains, “requires the Department to review and reconsider all existing regulations, orders, guidance documents, policies, and any other similar agency actions, including the 2020 amendments to the Department’s Title IX regulations.” The Education Department’s Office of Civil Rights will now be seeking comments from the public about the issue through a “public hearing,” and they say that they’ll release more details in the near future.
Elsewhere in the federal government, the Justice Department recently formally outlined an extension of anti-discrimination protections to LGBTQ students at schools that receive federal funding. The Biden Justice Department reversed Trump era policy, which excluded LGBTQ students from these protections.
Pamela Karlan, who heads the department’s civil rights division, explained in a recent memo that the department had formally concluded that anti-discrimination protections recently outlined by the Supreme Court for workplaces also applied to schools. In short, the court said that federal prohibitions against workplace discrimination on the basis of “sex” also applied to discrimination on the basis of sexual orientation and gender identity, and the department formally concluded that these protections extended to schools that are covered by similar federal civil rights legislation.