Colleges warily welcome Biden rules on campus sexual assaults

US colleges and universities are grateful that the Biden administration has completed its overhaul of regulations for handling education-related sexual misconduct complaints, but wish it was allowing more time to make the change.

In the latest in a series of alternating policy reversals between Republican and Democratic presidencies, the Biden administration has negated a Trump-era policy that had strengthened the rights of the accused in college-related sexual assault complaints and had lessened the expectations of colleges to investigate.

US higher education has generally sided with Democrats over the politically charged question. But as they did when the Trump administration first made its reversal in 2020, sector leaders warned politicians about making frequent fundamental shifts in areas that require major adjustments in operations and carry great importance to students.

The Biden administration’s reversal is more difficult than it needs to be, said the American Council on Education, the main US higher education lobby group, because it is being done with an August implementation deadline.

That “disregards the difficulties inherent in making these changes on our nation’s campuses in such a short period of time”, ACE’s president, Ted Mitchell, said after the Biden announcement.

The new regulations concern Title IX, the 1972 federal law that forbids sex discrimination in educational institutions that receive federal funding – which means nearly all colleges and universities. Presidential administrations can change such regulations – the rules that define the terms of laws passed by Congress – by simply pursuing a months-long process that requires them to formally hear the opinions of affected parties. That broad authority has made regulatory rewrites a key option, especially in education policy, for making changes in the face of an increasingly gridlocked Congress.

The Obama administration had issued written guidance on the matter, rather than making a formal regulatory change, in a bid to prod institutions to become more active in investigating sexual harassment and assault allegations. The Trump administration rescinded that guidance and then used the regulatory process to weaken enforcement processes through changes that included giving the accused enhanced legal protections – most notably the right to question their accusers in hearings.

And now the Biden administration, via a regulatory overhaul process that it first announced in 2022, is largely reinstating the Obama-era procedural norms while expanding the scope of prohibited harassment and discrimination to include matters of sexual orientation and gender identity.

The changes aim to make clear “that all our nation’s students can access schools that are safe, welcoming and respect their rights”, the US secretary of education, Miguel Cardona, said in announcing the terms.

The rules prompted a round of compliments from congressional Democrats and condemnations from Republicans, including Dr Cardona’s Trump administration predecessor, Betsy DeVos. The new regulation represents a “U-turn to the bad old days where sexual misconduct was sent to campus kangaroo courts, not resolved in a way that actually sought justice”, Ms DeVos said in a social media posting. It also “returns adjudications to the preponderance of the evidence standard – where essentially a coin-flip about guilt or innocence can remove a student from campus and tarnish their reputation for life”, she said.

But Dr Mitchell, a former president of Occidental College, said institutions, in such a sensitive arena, welcomed their restored ability to assess the allegations and the credibility of the parties – including the elimination of the Trump requirement for live hearings with a cross-examination of victims.

But like the Trump policy, when it was announced in May 2020, colleges and universities are being given only until the coming August to comply with the Biden language. That short timeline over the summer will prevent institutions from discussing implementation with students and other affected parties, and the challenge “will fall particularly hard on small, thinly staffed and under-resourced institutions”, Dr Mitchell said.

“After years of constant churn in Title IX guidance and regulations,” he said, “we hope for the sake of students and institutions that there will be more stability and consistency in the requirements going forward.”

paul.basken@timeshighereducation.com