Where Do We Go From Here?: The Past, Present, and Future of Title IX
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
Despite the concise language used in Title IX of the 1972 Education Amendments, the statute has, over the course of the past five decades, grown to encompass a plethora of issues in academic environments in the United States. While Title IX was initially created with the sole focus of combatting sex- and gender-based discrimination in American academia, the U.S. Supreme Court has broadened the definition of sex-based discrimination to include instances of sexual harassment and assault through historic cases such as Alexander v. Yale. As a result, the application of Title IX has expanded significantly since its conception, pertaining to virtually every issue regarding sex-, gender-, and sexuality-based discrimination in academic environments in the United States.
Considering the drastic changes to Title IX enacted by the Trump administration, the need to revisit and amend the ways in which the statute is respected and practiced by academic institutions in the United States is greater than ever. Joe Biden, who was inaugurated as the 46th President of the United States earlier this week, has repeatedly declared that he plans to rescind the damaging provision to Title IX executed under the Trump administration—and, more specifically, former secretary of education Betsy Devos—and facilitate a return to Obama-era Title IX policies.
In order to appreciate Biden’s vision for Title IX, we must first understand how the statute has shifted over the course of the Obama and Trump administrations. In his second term, President Barack Obama issued an unofficial Title IX guidance that encouraged academic institutions to investigate and examine all reports of sexual misconduct. Colloquially referred to as the “Dear Colleague” letter, these provisions mandated universities to adjudicate all instances of sexual misconduct related to individuals in their communities, regardless of where they occurred.
In the past four years, however, the Trump administration—spearheaded by Betsy Devos—implemented numerous provisions to Title IX that privileged those accused of sexual violence and derailed the protections to survivors of sexual assault that the “Dear Colleague” letter instituted. Most notably, Betsy Devos enacted the infamous and controversial new Title IX Rule on August 14th, 2020. Arguably the most problematic facet of this new regulation was its requirement that both accusers and those accused of sexual assault must attend a live hearing in which they are cross-examined. Not only does this rule essentially force upon survivors of sexual assault the traumatic experience of live cross-examination, but it also allows for perpetrators of sexual assault to obfuscate evidence against them by refusing to testify in the live hearing.
Given the drastic (and damaging) changes the Trump administration made to Title IX policies, it is no surprise that many look forward to the Biden administration’s hopeful return to Obama-era Title IX practices under the guidance of secretary of education Miguel Cardona. Despite the protections that such a move will secure for survivors of sexual assault in the United States, we must consider how the Biden administration can improve upon the past Title IX provisions made by its predecessors.
One potential area of improvement that the Biden administration can strive towards in relation to Title IX is ensuring the protection of both accusers and those accused of sexual assault. Both of the provisions to Title IX enacted by the Trump and Obama administrations have been critiqued due to their lack of clear standards regarding due process and their respective over-privileging of those accused of sexual assault and the accusers. Similar to the ways in which Devos’ new Title IX Rule has faced backlash due to the lack of protection it affords accusers of sexual assault, the Obama administration’s policies regarding Title IX have been condemned by both political organizations and federal appeals courts as a result of their lack of clear instructions for due process and protections for those accused of sexual assault. Over the course of the next four years, the Biden administration should consequently halt the application of Devos’ new Title IX Rule and develop an innovative system that guarantees the equal protection of all parties involved in sexual assault-related cases on academic campuses across the nation.
With that being said, in the midst of the Biden administration’s future alterations to Title IX, we should be cautious not to lionize Biden as a champion of women’s rights in light of the transgressions he has committed against women in the past. If we truly support and stand with survivors, we, as individuals living in a country that has now elected two presidents facing multiple accusations of sexual assault in a row, must hold Biden accountable for his actions against Tara Reade, Lucy Flores, and the other six women who have publicly accused Biden of sexual harassment and assault.
Written January 24, 2021