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Biden Order Could Change How Colleges Handle Sex Misconduct
In a first step toward reversing a contentious Trump administration policy, President Joe Biden on Monday ordered his administration to review federal rules guiding colleges in their handling of campus sexual assaults.
In an executive order, Biden directed the Education Department to examine rules that the Trump administration issued around Title IX, the federal law that forbids sex discrimination in education. Biden directed the agency to "consider suspending, revising or rescinding" any policies that fail to protect students.
Biden also signed a second executive order formally establishing the White House Gender Policy Council, which his transition team had announced before he took office.
"The policy of this administration is that every individual, every student, is entitled to a fair education — free of sexual violence — and that all involved have access to a fair process," Jennifer Klein, co-chair and executive director of the Gender Policy Council, told reporters at a White House briefing.
The orders were issued on International Women's Day, a global celebration marking the achievements of women.
Trump administration
Both measures had been expected from Biden, who focused on gender equity during his campaign and previously promised to put an "immediate" end to rules that were finalized last year by former Education Secretary Betsy DeVos.
DeVos's policy made sweeping changes to the way colleges respond to sexual harassment and assault, with provisions that bolster the rights of the accused and narrow the scope of cases schools are required to address. It was seen as a swing away from Obama-era guidance that focused on protecting victims of sexual misconduct.
Among other changes, DeVos's rules narrowed the definition of sexual harassment, reduced the legal liability of colleges investigating sexual misconduct claims and gave accused students the right to cross-examine their accusers through a representative at live campus hearings.
Biden's order for a review drew praise from civil rights groups that say DeVos's policy has had a chilling effect on the reporting of sexual assaults, and also from colleges that say the rules are overly prescriptive and burdensome to follow.
"This is an important step," said Shiwali Patel, senior counsel at the National Women's Law Center. "The Title IX rules changes that took place under the Trump administration are incredibly harmful, and they're still in effect."
Yearslong process
Although the order sets the stage for a major policy shift, change is unlikely to come quickly. Any effort to rewrite DeVos's rules would have to go through a federal rule-making process that can take years to complete. It took three years, for example, for DeVos to reverse the Obama guidance and complete her own set of rules.
Terry Hartle, senior vice president of the American Council on Education, said Biden's announcement was welcome but changes very little immediately. "In the meantime, the Trump regulations will remain in place," Hartle said.
Republicans slammed Biden's move and defended DeVos's rules.
"The right to due process is bigger than partisan politics — it is a cornerstone of American democracy," said North Carolina Congresswoman Virginia Foxx, the ranking 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."
Some of the most contentious aspects of DeVos's rules — including the requirement to allow cross-examinations — are expected to be eliminated in the Biden overhaul. But rather than reverting to Obama's 2011 policies, some legal experts expect Biden to seek a middle ground that equally protects accused students and their accusers.
Part of the solution will likely include greater flexibility for schools as they respond to complaints, said Josh Richards, a lawyer who advises universities on Title IX issues. The scope of cases that colleges must address is also likely to be expanded again under the Biden administration, he said.
"I don't think it's necessary to go to the extent that the DeVos era rules went in importing court-style legal rules to these processes in order to provide a fair process to everyone involved," Richards said.
A rollback of the existing regulation would be a blow to DeVos, who saw it as one of her signature achievements. In a parting letter to Congress in January, she urged lawmakers to "reject any efforts to undercut this important rule for survivors." Their approval, however, is not needed to create new agency rules.
Legal challenges
Biden is starting the process even as DeVos's policy faces ongoing legal challenges. Multiple lawsuits have been filed asking federal courts to strike down the policy, including a new suit filed Monday by a group of high school students in California. A lawsuit by the National Women's Law Center is scheduled to go to trial in November.
While its suit is pending, the law center is urging the Biden administration to issue a directive suspending parts of the policy that are being challenged in court. Dozens of students and sexual assault survivors issued a separate letter on Monday urging Biden to issue immediate guidance that supports the rights of survivors.
Gender equity
Biden's other order establishing the Gender Policy Council was issued after Trump disbanded an office specifically focused on women's issues created during the Obama administration that was called the White House Council on Women and Girls.
The new council is tasked with helping push gender equity on the administration's domestic and foreign policy efforts.
Some of the issues the council will focus on include combating sexual harassment, addressing structural barriers to women's participation in the workforce, decreasing gender wage and wealth gaps, and addressing caregiving issues that have disproportionately affected women.
Biden signed the orders hours before delivering a White House address to mark International Women's Day. He used his speech to celebrate the recent nominations of Air Force Gen. Jacqueline Van Ovost and Army Lt. Gen. Laura Richardson to serve as combatant commanders. If confirmed by the Senate, they will become just the second and third women to serve as combatant commanders in the military.
Biden also used the speech to make the case that more needed to be done to improve conditions for women who serve, including dealing with the scourge of sexual assault and harassment in the ranks. Defense Secretary Lloyd Austin has promised to make addressing the issue a top priority as reports of sexual assault have steadily gone up since 2006, according to Pentagon data.
Biden called the problem "nothing less than a threat to our national security."
Vice President Kamala Harris
Ahead of Biden's speech Monday, Vice President Kamala Harris marked International Women's Day with a virtual address to the European Parliament, while first lady Jill Biden honored nearly two dozen women from around the world for demonstrating courage in pursuit of justice during a State Department ceremony.
Harris noted that women have been disproportionately impacted by the economic toll of the coronavirus pandemic. Since February 2020, more than 2.3 million have left the workforce, putting women's labor force participation rate at 57%, the lowest it has been since 1988, according to a National Women's Law Center analysis.
"Simply put, our world does not work for women as it should," Harris said.
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Geopolitical tensions and growing competition in tech between the United States and China appear to be spilling over into academia despite commitments from the world’s two biggest economies to boost people-to-people exchanges.
The United States remains the top choice for Chinese students seeking to study abroad with nearly 300,000 studying in American colleges and universities during the 2022-2023 school year. But reports of some cases that students and professors are facing extra scrutiny while passing through immigration and the deportation of others are raising concerns.
For Chen Xiaojin, a doctoral student studying semiconductor materials at a university in the Washington, D.C., metropolitan area, it has been six years since she returned to her hometown of Beijing.
At first, it was the COVID-19 pandemic that kept her from going home. But over the past two years, she has been deterred by accounts of Chinese students majoring in science and engineering being required to reapply for their visas upon returning to China.
She also says she is worried by reports over the past six months of Chinese students being deported, even at nearby Dulles Airport.
"My current research is relatively sensitive, and my boss [adviser] is getting funds from the U.S. Department of Defense, making it even more sensitive,” she told VOA. "I am afraid that I won't be able to return after I go back [to China]."
Chen says that if she did return to China, she would have to apply for a new visa.
In a report late last month, Bloomberg said it had found at least 20 Chinese students and scholars with valid visas who were deported at U.S. Customs since November and barred from reentry. The U.S. Customs and Border Protection Agency does not release relevant data.
Immigration attorney Dan Berger represented one Chinese student who was deported late last year. He tells VOA Mandarin that the student studied biological sciences at Yale University and was about to complete her doctorate.
She visited her family in China and got a new visa but was deported by customs at Dulles Airport and barred from reentering the country for five years. Berger said he did not see anything suspicious in the transcript of the conversation between the student and the customs officer.
"We have seen what seems like a pattern over the last six months of Chinese PhD students being turned around…. more than I've seen in quite a while," he said.
Matthew Brazil, a fellow at the Jamestown Foundation, said neither country seems willing to explain the situation. However, he believes that in most cases, the United States must have valid reasons for blocking visa holders from entering the country.
In some cases, the student’s background may not match what is written on the visa application. In other cases, customs agents may also find something that the State Department missed, and once they see it, they are responsible for taking action.
"I wish the Chinese side would be specific about their students who were refused entry,” he said. “The fact that both sides are mum on details and that the Chinese side is engaged with the usual angry rhetoric means that each has security concerns. And that says to me that there was good reason for the U.S. to stop these particular applicants."
Brazil also sees a connection between the entry denials and export control regulations issued by the United States in October 2022 that restrict China's ability to obtain advanced computing chips, develop and maintain supercomputers, and manufacture advanced semiconductors.
U.S. Customs and Border Protection is one of the law enforcement agencies authorized to investigate violations of export control regulations, he said.
"Beijing's intelligence agencies are known to focus attention on PRC [People's Republic of China] students and scientists headed abroad who study or work on dual-use technologies controlled under the Export Administration Act — compelling Chinese students and scientists to report on what they've learned when they return to China on holiday,” he said. “This has been true for decades."
Bill Drexel, a fellow for the Technology and National Security Program at the Center for a New American Security, said the U.S. government did find some cases where students tried to steal strategic technology for China.
"I think it would both not be surprising that they found some really questionable or incriminating evidence for some students,” he said. “It would also not be surprising if, in their hunt for really solid evidence, they also may have made some mistakes on other students.”
Drexel adds that “it’s just kind of an unfortunate fact of the time that we live in and the tactics that the CCP uses when it comes to these measures."
In a post on X in early May, U.S. ambassador to China Nicholas Burns tried to dispel concerns about visas and entry to the United States for students and scholars. In the post, he said "99.9% of Chinese students holding visas encounter no issues upon entering the United States.”
In an interview with The Wall Street Journal Monday, Burns said it is China that is making it impossible to promote people-to-people ties. Burns told the Journal that students attending events sponsored by the United States in China have been interrogated and intimidated.
He also said that since U.S. President Joe Biden and China’s leader Xi Jinping held their summit in San Francisco last year, China’s Ministry of State Security and other agencies had interfered with Chinese citizens’ participation at some 61 events.
At a regular briefing on Wednesday, Chinese Foreign Ministry spokesperson Mao Ning dismissed those accusations, saying that they did not “reflect reality" and that went against key understandings reached by both countries’ presidents in San Francisco.
“The United States, under the pretext of 'national security,' unjustifiably harasses, interrogates, and deports Chinese students in the U.S., causing them significant harm and creating a severe chilling effect,” Mao said. “The image of the United States in the minds of the Chinese people fundamentally depends on the actions of the United States itself.”
Drexel said he believes Burns’ comments about visas and students' willingness to study in the U.S. still ring true.
“On balance, it's still the case that American universities are overwhelmingly warm towards Chinese students and want them in large numbers," he said.
However, Berger, the immigration lawyer, is concerned about the chilling effect recent cases involving Chinese students could have.
"In general, we are being more careful about advising Chinese graduate students in STEM fields about traveling and letting them know that there is some small risk,” he said.
Even though the risk is small, it does seem to be real at the moment, he said.
Adrianna Zhang contributed to this report.
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