Title IX Court Decisions Make It Harder for Biden to Rewrite Rules

A string of recent court decisions have accepted sex-based discrimination claims by male students after their schools sanctioned them for harassment or assault, potentially complicating plans for a complete overhaul of former Education Secretary Betsy DeVos’s campus sexual misconduct regulations.

President Joe Biden plans to rewrite the DeVos rule governing Title IX, the 1972 federal law that bars gender-based discrimination at schools. The law has been at the center of debates over schools’ response to sexual harassment—mostly against women—on campus.

Advocates for strong enforcement of the law at colleges say the court decisions effectively turn Title IX on its head by lowering the bar for plaintiffs to allege anti-male bias.

“Recent case law is going have a profound impact on what the Biden administration can do with respect to the Title IX regulations,” said Jim Newberry, a lawyer at Steptoe & Johnson PLLC who advises colleges on issues including Title IX.

The wins for accused students alleging anti-male bias have been mostly at the appellate court level, and focused on due process requirements. But they could pressure colleges to settle lawsuits with students accused of misconduct, advocates warn.

“Title IX is becoming a tool for people accused of sexual harassment rather than people who experienced sexual harassment,” said Alexandra Brodsky, an attorney at Public Justice who co-authored a forthcoming law review article on anti-male bias findings in Title IX cases. Courts are offering a lower bar to male students than to other plaintiffs who have made discrimination claims, she said.