It Could Take Years For Miguel Cardona To Repeal Betsy DeVos’ Harmful Title IX Policy
Miguel Cardona cut out his work for him.
If he is ratified by the Senate after President-elect Joe Biden's inauguration next month, Cardona - who tapped Biden as education secretary - will replace Betsy DeVos, one of Donald Trump's few remaining original cabinet members. Among the many messes Cardona has to clean up: DeVos' withdrawal of rights for student sexual assault survivors.
In August, DeVos implemented a new policy for Title IX, the federal civil rights law created to ensure gender equality in education. DeVos's rule is very different from the original intention of Title IX.
The new rule of Title IX fundamentally changes the way colleges deal with allegations of sexual misconduct by speeding up investigations, adding safeguards for the defendants, and even allowing schools to completely evade responsibility for assault if they take place off campus. The policy has been heavily led by human rights activists (who believe there is a rampant crisis of false rape allegations against men) and makes it difficult for survivors of sexual violence to report harassment and assault by narrowing the definition of sexual misconduct and limiting the options for a victim to report at.
The rule goes against past consensus and guidance from both Democratic and Republican presidents.
"The purpose of Title IX was to protect people, particularly those who have historically been the most vulnerable to gender discrimination," said Maha Ibrahim, an attorney for Equal Rights Advocates. “The DeVos administration has turned the intent of these rules on its head. They have tried and managed to put regulations in place that suspect these people rather than protecting them. "
DeVos and the Department of Education are faced with a handful of lawsuits from activist groups alleging the rule is discriminatory and contrary to Congress' original intent on the Civil Rights Act. Student survivor advocates see an alarming increase in libel suits and cross-files against victims - common tools in criminal proceedings.
"Title IX is not about unduly protecting people from the boogeyman of false allegations of gender discrimination," Ibrahim said. "It would be like creating Title VI, the Civil Rights Act, to protect whites from racism."
Title IX is not about unduly protecting people from the boogeyman of false allegations of gender discrimination. It would be like creating Title VI, the Civil Rights Act, to protect whites from racism.
Maha Ibrahim, lawyer for equality
Given Biden's previous policies to combat violence against women and his work to eradicate sexual assault on college campuses, it is highly likely that the president-elect will work to repeal and replace DeVos' Title IX rule. However, this process can take anywhere from two months to two years, and DeVos' numerous policy changes may take longer to fix the major damage.
For an immediate loophole, proponents believe that Biden will likely issue some sort of tentative guide in January to help clear up confusing clauses contained in the DeVos rule. This guide is often referred to as a "Dear Colleague" who, since it is a list of proposals rather than rules, does not need to go through a rigorous and time-consuming regulatory process.
Cardona's work begins here. There are two main obstacles to the Cardona and Biden administration in trying to undo the damage done by DeVos.
The first problem is that DeVos completely changed the playing field of Title IX during her time as education secretary, said Sage Carson, manager of KnowYourIX against sexual violence. DeVos, along with the Trump administration, welcomed and promoted the myth that victims - especially women - lie about sexual violence. This ideology attracted men's rights activists who eventually "found so much solace in the DeVos administration," Carson said. Because of this, proponents say Cardona should expect a wave of lawsuits from human rights defenders and others who believe a new rule violates their rights.
"The Biden government will reverse a move taken by a government that has become a villain," Ibrahim said. "If 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 hen house and it's a lot harder to get them out than they are keep out first. "
The second obstacle is the whiplash trauma that students, schools and the public will face when Cardona begins the process of changing DeVos' Title IX rule. Prior to the new regime, schools had worked for years to ensure that their sexual misconduct processes were compliant with the Title IX standard. Then they had to completely change these processes in August (no less in the first month of the school year and during a pandemic). And while many universities and students welcome new guidelines for Title IX, they simply need to relearn new definitions and processes.
Cardona needs to step in to ensure that survivors, individuals accused of sexual assault and stakeholders have confidence in him and the Title IX policies created by the Biden government.
Ibrahim stressed the importance of this transition. "We really saw that the DeVos administration is very far from civil rights," she said. "The Biden administration will have to try to get us back on track."
Colleges leave sexual assault survivors pending as the coronavirus spreads
Survivors fight aside with trauma to vote for Joe Biden
Betsy DeVos' campaign to take back the rights of sexual assault survivors has ended
There is a better way to meet sexual assault survivors
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This article originally appeared on HuffPost and has been updated.
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