New Executive Order Directs Sweeping Re-evaluation of Title IX Rules

On March 8, 2021, the Biden administration issued an Executive Order on “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.” The Order specifically calls for a review of rules implementing Title IX, the federal civil rights law that bans discrimination on the basis of sex in educational settings.

The Order directs the Department of Education to review all existing regulations, orders, guidance, and policies for consistency “with the administration’s promise that all students are guaranteed education free from sexual violence.” A particular focus of the review is likely to be the Title IX regulations implemented last May, under former Secretary of Education Betsy DeVos. Those regulations altered the handling of sexual assault allegations on college campuses, giving schools more flexibility in deciding whether to report accusations to the Title IX office, allowing for cross-examination of parties and witnesses, and allowing colleges to choose whether to evaluate allegations of sexual assault under a “preponderance of the evidence” standard or a “clear and convincing” standard. President Biden’s Order specifies that the new Secretary of Education should consider “suspending, revising, or rescinding” the previous Title IX regulations, and any others rules that are found to be inconsistent with the Biden administration’s philosophy.

The Order also provides that, for the purposes of Title IX and its implementing regulations, the prohibition of discrimination based on sex should be understood to include gender identity and sexual orientation. “It is the policy of my administration that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.”

While the Executive Order is a high-level policy statement and does not, in and of itself, immediately change any practices for schools, it likely signals a significant shift in how the Biden administration will interpret and enforce the rights of students with respect to sexual violence and discrimination. The Department of Education has until June 16, 2021 to conduct a review in compliance with the Order.

Picture of Wade S. Kolb III

Wade S. Kolb III

Wade focuses his practice on litigation, appellate advocacy, education, internal investigations, and governmental representation. Since joining Wyche in the fall of 2011, Wade has had extensive experience in high-stakes commercial litigation, representing both plaintiffs and defendants in state and federal court.

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