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Biden directs fresh review of Title IX rule on campus sexual assault

President Biden, joined by Vice President Harris, speaks in the State Dining Room of the White House on Saturday.
President Biden, joined by Vice President Harris, speaks in the State Dining Room of the White House on Saturday. (Oliver Contreras for The Washington Post)

President Biden on Monday directed the Education Department to review a controversial regulation governing how colleges and universities handle allegations of sexual assault, with an eye toward unraveling a new system put into place by former education secretary Betsy DeVos.

The DeVos regulation released in May spells out due process rights for those accused of harassment or assault, and the former secretary saw it as one of her most significant achievements. But it came under sharp attack from Democrats, women’s groups and others, and as a candidate, Biden signaled he would replace it.

It’s not clear, though, how he will go about it. Unraveling a regulation that is already in place may require a second complex rulemaking process.

Biden signed an executive order directing the Education Department to evaluate whether the DeVos regulation is “consistent with the policies” of the Biden administration. That’s a first step toward a fresh policy.

It also directs the agency to review other regulations, orders, guidances and policies to see whether they are consistent with the administration’s policy to “guarantee education free from sexual violence.”

Also Monday, Biden signed a second executive order establishing a new White House Gender Policy Council charged with developing a government-wide strategy for advancing gender equity and equality. It will focus on domestic and foreign policy, including examining the burden the coronavirus pandemic has put on women in particular, officials said.

The orders were released on International Women’s Day. Biden marked the day at an event announcing the nomination of two female generals as four-star combatant commanders. On Twitter, he said the day was meant to “celebrate the achievements, contributions, and progress of women and girls — and recommit ourselves to the cause of equity and equality for women around the world.”

As a candidate, Biden said he would revive Obama-era guidance to schools on how to investigate sexual harassment and assault under the federal civil rights law known as Title IX. That guidance did not carry the force of law, and DeVos rescinded it in 2017.

The DeVos regulation mandated a judicial-like process in which the accused has the right to a live hearing and to cross-examine accusers, providing what supporters see as much-needed due process protections. Opponents said it would allow assailants and schools to escape responsibility and discourage victims from coming forward.

Betsy DeVos announces new rules on campus sexual assault, offering more rights to the accused

Opponents of the DeVos rule welcomed the Biden action.

“Students should be guaranteed a safe education, protected from sexual harassment and assault. This is the first step toward reversing the outrageous policies carried out by Secretary DeVos,” Rep. Rosa L. DeLauro (D-Conn.) said.

But others fear the rights of the accused will be diminished.

“The right to due process is bigger than partisan politics — it is a cornerstone of American democracy,” said Rep. Virginia Foxx (R-N.C.), the top Republican on the House Education Committee. “By overturning these stakeholder-vetted, court-supported rules, key protections for victims and the due process rights of the accused would be jeopardized.”

A White House official declined to say how the Biden administration would address issues of due process.

“I don’t think there’s anything wrong with the notion that everybody involved, accused or accuser . . . should have a fair and full process,” said Jennifer Klein, co-chair of the White House Gender Policy Council and a former adviser to former secretary of state Hillary Clinton. “That’s exactly what the policy of this administration is. And the secretary of education will look at the regulation with that in mind.”

The gender council will also be co-chaired by Julissa Reynoso, chief of staff to first lady Jill Biden. The council, with a dedicated staff of four, is meant to span the administration with an eye toward “full participation of all people,” regardless of gender, said an administration official, speaking on the condition of anonymity at a background briefing ahead of the official announcement.

A similar office that existed in the Obama administration was called the White House Council on Women and Girls. The Biden version was renamed to refer to gender, partly to signal that issues of transgender people would be included, the official said.

Gender discrimination can happen to “people of all genders,” the official said. “There will be a focus on women and girls, but the choice of the name of the council is really intentional.”

Issues the council plans to address include sexual harassment, workforce issues, family caregiving, gender-based violence and gender equity globally.

“President Biden knows that we need a government-wide focus uplifting the rights of all women and girls,” Reynoso said.