Miguel Cardona has his work cut out for him.
If he is confirmed by the Senate after President-elect Joe Biden’s inauguration next month, Cardona — whom Biden has tapped for education secretary — will replace Betsy DeVos, one of Donald Trump’s few remaining original cabinet members. Among the many messes Cardona will be left to clean up: DeVos’ rollback of rights for student sexual assault survivors.
In August, DeVos implemented a new policy guideline for Title IX, the federal civil rights law created to ensure gender equity in education. DeVos’ rule veered very far from Title IX’s original intent.
The new Title IX rule completely reshapes how colleges handle sexual misconduct allegations by speeding up investigations, adding protections for the accused, and even allowing schools to skirt responsibility for assaults entirely if they take place off campus. The policy took heavy guidance from men’s rights activists (who believe there’s a rampant crisis of false rape allegations against men) and makes it harder for survivors of sexual violence to report harassment and assault by narrowing the definition of sexual misconduct and limiting who a victim can report to.
The rule breaks from past consensus and guidance from both Democratic and Republican presidents.
“The purpose of Title IX was to protect people, especially those who historically have been most vulnerable to discrimination on the basis of sex,” said Maha Ibrahim, a staff attorney at Equal Rights Advocates. “The DeVos administration turned the intent of these rules on its head. They tried and succeeded in promulgating regulations that suspected those people instead of protecting them.”
DeVos and the Department of Education are facing a handful of lawsuits from activist groups claiming that the rule is discriminatory and goes against Congress’ original intent for the civil rights law. Advocates for student survivors are seeing an alarming uptick in defamation suits and cross filings against victims ― common tools used in criminal proceedings.
“Title IX is not about overly protecting people from the boogeyman of false accusations of sex discrimination,” Ibrahim said. “That would be like saying we created Title VI, the race civil rights law, to protect white people from being accused of racism.”
“Title IX is not about overly protecting people from the boogeyman of false accusations of sex discrimination. That would be like saying we created Title VI, the race civil rights law, to protect white people from being accused of racism.”
Given Biden’s past policies to combat violence against women and his work to eradicate sexual assault on college campuses, it’s very likely the president-elect will work to repeal and replace DeVos’ Title IX rule. However, that process could take anywhere from two months to two years, and undoing the broader damage from DeVos’ many policy changes could take even longer.
For an immediate stop-gap, advocates believe Biden will likely issue some type of interim guidance in January to clarify confusing clauses included in DeVos’ rule. This guidance is often referred to as a “Dear Colleague” letter which, because it’s a list of suggestions rather than rules, does not need to go through a rigorous and time-consuming regulatory process.
This is where Cardona’s work begins. There are two main obstacles Cardona and Biden’s administration will face when trying to undo DeVos’ damage.
The first issue is that DeVos completely changed the Title IX playing field during her time as education secretary, said Sage Carson, manager at the anti-sexual violence organization KnowYourIX. DeVos, along with the Trump administration, welcomed and promoted the myth that victims — specifically women — lie about sexual violence. This ideology attracted men’s rights activists who eventually “found so much comfort in the DeVos administration,” Carson said. Because of this, advocates say, Cardona should expect a wave of lawsuits from men’s rights activists and others who feel their rights will be violated with a new rule.
“The Biden administration will be undoing a step that was taken by an administration that went rogue,” Ibrahim said. “When you do that, you have people ― like the men’s rights groups ― who feel like they really won when DeVos invited them into the house. The foxes were invited into the chicken coop and it’s a lot harder to get them out than to keep them out to begin with.”
The second obstacle is the whiplash that students, schools and the public will face when Cardona starts the process to change DeVos’ Title IX rule. Prior to the new rule, schools had worked for years to ensure that their sexual misconduct processes were up to standard under Title IX. Then in August, they had to change those processes completely (in the first month of the school year and during a pandemic, no less). And while many universities and students welcome new Title IX guidance, it will simply require re-learning new definitions and processes all over again.
Cardona will have to step in to ensure survivors, those accused of sexual assault, and advocacy groups have faith in him and whatever Title IX policy the Biden administration creates.
Ibrahim emphasized just how important this transition will be. “We’ve really seen the DeVos administration veer very far off the road of civil rights,” she said. “The Biden administration is going to have to try to get us back on that road.”