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ICYMI: Court Thwarts Biden’s Attempt to Rewrite Title IX

Vice President Joe Biden was an architect of the Obama administration’s disastrous Title IX policies, which led colleges and universities to create policies that have subsequently drawn judicial scrutiny in courts across the country. The Trump administration restored balance to the Title IX system, expanding protections for sexual assault victims while guaranteeing the due process rights of the accused. 
 
Unsurprisingly, President Biden is attempting to revert back to the Obama-era regulations, undoing key legal protections for sexual assault victims and students wrongfully accused of sexual assault. But federal courts are pushing back…
 
In case you missed it via Bloomberg Law, federal courts have taken President Biden’s misguided Title IX policies to task, doing harm to sexual assault victims and the accused alike: 
 
DeVos’s Legacy Snags Biden’s Rewrite of College Male-Bias Rules
By: Andrew Kreighbaum 
April 5, 2021
 
(Bloomberg Law)- A string of recent court decisions have accepted sex-based discrimination claims by male students after their schools sanctioned them for harassment or assault, potentially complicating plans for a complete overhaul of former Education Secretary Betsy DeVos’s campus sexual misconduct regulations.
 
President Joe Biden plans to rewrite the DeVos rule governing Title IX, the 1972 federal law that bars gender-based discrimination at schools. The law has been at the center of debates over schools’ response to sexual harassment—mostly against women—on campus.
 
Advocates for strong enforcement of the law at colleges say the court decisions effectively turn Title IX on its head by lowering the bar for plaintiffs to allege anti-male bias.
 
Recent case law is going to have a profound impact on what the Biden administration can do with respect to the Title IX regulations,” said Jim Newberry, a lawyer at Steptoe & Johnson PLLC who advises colleges on issues including Title IX.
 
The wins for accused students alleging anti-male bias have been mostly at the appellate court level, and focused on due process requirements. But they could pressure colleges to settle lawsuits with students accused of misconduct, advocates warn.
 
“Title IX is becoming a tool for people accused of sexual harassment rather than people who experienced sexual harassment,” said Alexandra Brodsky, an attorney at Public Justice who co-authored a forthcoming law review article on anti-male bias findings in Title IX cases. Courts are offering a lower bar to male students than to other plaintiffs who have made discrimination claims, she said.
 
DeVos in 2017 cited “dozens upon dozens of lawsuitsfrom punished students to justify scrapping guidance issued by President Barack Obama’s administration in 2011 and 2014 that was intended to prod colleges and K-12 schools into responding more effectively to sexual misconduct.
 
The framework created by those federal policies, she argued, led schools to adopt procedures unfair to accused students. DeVos issued new regulations last year requiring, among other provisions, that accused students have an opportunity for a live hearing on misconduct claims, and that they be able to question complainants
 
The court decisions on anti-male bias claims, beyond creating an incentive for colleges to settle with students who sue, “will have an impact on how schools respond to sexual harassment and assault because of the very real concern about litigation by respondents,” said Shiwali Patel, senior counsel at the National Women’s Law Center and a former official at the Education Department’s Office for Civil Rights…
 
As vice president under Obama, Biden was closely linked to the new federal policy on Title IX. He co-chaired a White House task force to address student sexual assault, and helped unveil the administration’s new guidance in 2011. As a presidential candidate, Biden said the DeVos rule gave colleges “a green light to ignore sexual violence.”
 
Attempts to block the DeVos regulations in court have been unsuccessful. A federal judge last year threw out for lack of standing a lawsuit brought by the ACLU and the advocacy group Know Your IX.
 
Biden has already started the process for unwinding those regulations. The White House directed the Education Department this month to assess the existing Title IX rule, the first step in what will likely be a years-long process to issue new regulations. Steptoe & Johnson’s Newberry said recent court decisions and the promulgation of the DeVos rule will make it more complicated to dramatically overhaul federal policy on campus sexual misconduct.
 
To read the full article in Bloomberg Law, click here.
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