Biden’s Enigmatic Executive Order on Sex Discrimination
Buddy Ullman
April 29, 2021
President Biden’s March 8th Executive Order (EO) 14021 mandated “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” and directed Secretary of Education Cardona to review all Department of Education policies that might be inconsistent with the EO. Cardona’s review needs to be finalized by June 16th. It’s a tight deadline.
By issuing EO 14021, President Biden is unmistakably targeting the new Title IX (TIX) compliance Rule that former Secretary of Education Betsy Devos effected in August, 2020. In fact, the Rule is specifically cited three times in the 1½ – page EO. Of note, the EO and the DeVos Rule are not the same: they overlap and clash.
In response to the EO, the Department of Education’s Office for Civil Rights, headed by Acting Assistant Secretary Suzanne Goldberg, issued a letter to stakeholders and press release announcing the launch of a comprehensive review of the Rule that she will head. Ms. Goldberg’s assessment is more expansive than that authorized by the EO and includes a public hearing, the issuance of a question-and-answer document, and most concerning, a notice of anticipated rulemaking that seems precipitous.
President Biden does not offer any explanation for why he believes that the DeVos regulations might be discriminatory and therefore inconsistent with EO 14021. Neither does Ms. Goldberg. Whereas there are components of the 2,033 page DeVos rule to which people disagree, there is absolutely nothing in the Rule that is even remotely discriminatory. In fact, the Rule vigorously supports compliance with TIX, which in itself is an anti-discrimination federal civil rights law.
President Biden did promise during the course of his campaign to put a “quick end” to the Rule, and Goldberg’s review may be a sly mechanism to accomplish this objective. Biden’s line of reasoning for his campaign promise appears to be his groundless belief that the DeVos Rule seeks to “shame and silence survivors,” and “gives colleges a green light to ignore sexual violence and strip survivors of their rights.” I find his ratiocination to be nonsense, and I’m a progressive Democrat and ardent Biden fan.
Ms. Goldberg’s views on the DeVos Rule are largely unknown at this point, but she does report, ultimately, to the President. The Assistant Secretary in a 2019 op-ed did express her opposition to a pivotal component of the Rule, cross-examination (XXN) in a live-hearing format, but her dissatisfaction was based mainly on hypothetical disparities between advisors to the parties in a dispute, an argument also applicable to any criminal case in a court of law where XXN is a constitutional mandate. Ms. Goldberg’s argument against the Rule is not compelling and is offset by the enormous benefits that cross-examination brings to the truth-finding objective of a TIX investigation. Furthermore, eliminating XXN for students in TIX proceedings that would be constitutionally mandated for nonstudents in a court of law, I would argue, is the epitome of discrimination, and would be a violation of President Biden’s EO.
There are some noteworthy differences between EO 14021 and the one-sentence TIX, which states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The significance and impact of these discrepancies is obscure but disquieting.
EO 14021, for example, applies specifically to students, while TIX relates to all persons, most pertinently faculty and staff, who can be respondents in TIX proceedings, as I learned the hard way. EO 14021 also impacts students in all schools, whereas TIX is restricted to those schools and educational institutions that receive federal financial assistance. Because EOs are limited to the operations of the federal government, the jurisdiction of EO 14021 over educational institutions that are not overseen by TIX is unclear. Equivalently ambiguous is whether the current TIX regulations apply to violations of Biden’s EO that are not covered by TIX. EO 14021 stipulates no enforcement mechanism.
EO 14021 is also much expansive in its purview than TIX. TIX focuses on educational programs and activities, while Biden’s EO encompasses the educational environment. What exactly constitutes an educational environment is highly debatable. In contrast, the Rule’s directives pertaining to settings under a school’s TIX purview are transparent and were obliged by the Davis verdict that was affirmed by five liberal justices, including progressive icon Ruth Bader Ginsburg. The justices established that “the harassment must take place in a context subject to the school district’s control.” but the educational environment that is the focus of the EO includes places outside a school’s control, e.g., a home.
The punctilious and judicious Rule is predicated upon: (1) the United States Constitution, principally the 1st, 5th, and 14th amendments; (2) judicial precedent, in particular the 1999 Supreme Court decision Davis versus Monroe County Board of Education that was affirmed by five liberal justices; and (3) congressional intent, i.e., the text of TIX. The Rule insists upon reasonable, fair, and equitable procedures by which gender discrimination, sexual harassment, and sexual assault disputes are investigated under TIX. Unlike the vague, discretionary, and now rescinded Obama-era guidance that was actually spearheaded by then Vice President Biden in 2011, the DeVos rule is constitutionally and legally sound and does not discriminate against respondents.
The vast majority of Americans support the due process and free speech provisions that are encompassed in the DeVos Rule. Joe Biden promised in his inaugural address to “be a president for all Americans.” Let’s hope he will.