UPDATE: On Thursday morning, President Joe Biden and Education Secretary Miguel Cardona announced changes to campus sexual assault policies under Title IX, appearing to save these proposals for the 50th anniversary of Title IX, a year and a half into his presidency. These proposed changes would reverse Trump-era rules that allowed schools to avoid investigating off-campus assaults, and to require questioning that permit alleged assailants to cross-examine victims. Biden’s proposals would also extend Title IX’s prohibition on sex-based discrimination to include sexual orientation and gender identity, protecting queer and trans students.
Some Trump-era policies would remain: Schools would still be permitted to use the “clear and convincing evidence” standard of proof—which means about 75% certainty—to determine if someone has committed sexual misconduct if they use this standard in other discrimination cases; otherwise, schools are to use the “preponderance of the evidence” standard (51% certain), which is standard for civil suits. If Republicans retake the House and Senate in November, they could use the Congressional Review Act to overturn these changes.
Prior to taking office, President Joe Biden pledged to reverse Trump-era campus sexual assault policies without delay. It’s long been one of his signature issues.
Thursday marks the 50th anniversary of Title IX, the federal law that prohibits gender-based discrimination in publicly funded institutions—including campus sexual assault. And a year and a half into the Biden administration, advocates are questioning why the Education Department still has yet to reverse the Trump-era campus sexual assault policies set by former Education Secretary Betsy DeVos.
The policies in question, which were merely proposals throughout the Trump presidency until taking effect in 2020, narrowed the parameters of sexual misconduct that schools are required to respond to, allowed schools not to investigate off-campus sexual assaults, and even opened the door for student survivors to be cross-examined in-person by their assailants. Even before these policies went into effect—shaped with the guidance of prominent men’s rights activists—the Trump administration almost immediately reversed the Obama-era guidelines, which had prompted colleges and universities to crack down on sexual assault, investigate reports in a timely manner, and lower the evidentiary standard for reported assaults so that more survivors would be comfortable coming forward.
“There’s so much at stake for student survivors, and such urgency to reverse these policies, which have made it a lot more difficult for survivors to come forward,” Thalia Charles, a policy organizer at Know Your IX, told Jezebel. Know Your IX is a survivor justice legal advocacy group that organizes on campuses across the country.
It’s estimated that 90% of campus sexual assaults are unreported. Given the extensive research into the backlash, retaliation, and punishment student survivors have faced upon coming forward, these low reporting rates aren’t surprising—but they can be highly consequential in schools that require students to report an assault in order to access crucial academic accommodations, counseling services, or other resources. And we know what happens when student survivors don’t receive sufficient supports from their schools: 34 percent of campus sexual assault survivors are forced to drop out of school.
Some student-survivors Know Your IX interviewed said they were the ones who were threatened or punished by their schools when they came forward. Alexandra Brodsky, author of Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash, has previously told Jezebel it’s not uncommon for survivors to be the ones who are “disciplined when they ask their school for help, if they were drinking or doing drugs at the time of their assault.”
Title IX has been the law of the land for 50 years now, yet Charles notes that whenever it seems any progress is made toward improving life for survivors, violent backlash against this progress creates even greater challenges. “As evidenced by the anti-feminist, misogynist disinformation campaign that surrounded the [Amber Heard and Johnny Depp] defamation trial, there’s a lot of retaliation against the gains we saw from the #MeToo movement,” she said.
Such defamation suits are frequently used to silence or punish campus sexual assault survivors: 23% of student survivors said their perpetrator or perpetrator’s attorney threatened to sue them for defamation, while 19% said they were warned by their school of the possibility of defamation suits.
One survivor that Know Your IX interviewed had been assaulted in her freshman year of college, and her assailant, who was found responsible by the school, went on to launch a four-year smear campaign against her. This smear campaign naturally included a defamation suit that followed her the rest of her college career and allowed her assailant “access her medical records, school records, even her sexual history,” Sage Carson, a co-author of Know Your IX’s report, previously told Jezebel. This retaliation forced the survivor to transfer schools, delay her graduation, and spend over $100,000 out-of-pocket trying to protect herself from his attacks.
It’s cases like this that Biden’s education department, led by Secretary Miguel Cardona, should be addressing. The department should be investing in more resources for survivors, taking further action to hold universities accountable, and creating more protections to shield students from their abusers. But nearly two years into this administration, the president has yet to even reverse DeVos’s policies.
The 50th anniversary of Title IX may come at a fraught time for survivors, amid inaction from the Biden administration and in the fallout of the Depp v. Heard defamation trial, which many survivors found to be triggering and re-traumatizing.
Democrats told us, after the “grab ‘em by the pussy” man ruled this country for four years, that we just needed to turn out and vote. Many people did—they delivered Biden a victory. And the very least the administration can do, if not proactively help people, is to reverse the damage that Trump did. We are waiting.