On March 8, President Biden took his first steps in reversing the Trump Administration’s Title IX policy by issuing an Executive Order 14021 (“Order”) directing the Secretary of Education to review the Title IX rules issued by the Trump Administration.

What does the Executive Order say?

The Order establishes the Biden Administration’s policy that “all students should be guaranteed an educational environment free from discrimination on the basis of sex.” The Order explains that “on the basis of sex” includes sexual harassment, sexual violence, and discrimination on the basis of sexual orientation or gender identity.[1]

In furtherance of this policy, the President directs the Secretary of Education and the Attorney General to review all agency actions (including regulations, orders, guidance documents, and policies) that may be inconsistent with this policy, and to provide a report to the Office of Management and Budget by June 16, 2021. The Order specifically addresses the rule issued by the Department of Education in May 2020 which expanded the rights of accused students and narrowed the definition of sexual harassment, among other sweeping changes. The President’s Order directs the Department of Education to review any guidance issued by the prior Administration implementing the rule and to issue new guidance as necessary to comply with the Biden Administration’s stated policy. Finally, the Order directs the Department of Education to “consider suspending, revising, or rescinding” any agency actions inconsistent with the Administration’s policy, and/or to propose new rules for notice and comment.

What does the Executive Order mean for Institutions?

The Order directs the Secretary of Education to review Trump Administration policies, but does not suspend any existing rules. All rules and guidance issued during the Trump Administration are therefore still in place. Until review is completed, institutions’ obligations for policies and procedures addressing Title IX complaints will likely remain unchanged.

The Order does however foreshadow a move away from the procedures put in place by the Trump Administration that many institutions found to be costly and burdensome. While not yet clear if the Biden Administration will revert fully back to the Obama Administration’s Title IX policies, it is likely the Biden Administration will strike a middle ground requiring institutions to respond to a broader class of complaints than the Trump Administration, while not requiring as many court-like procedures. Now would be a good time for colleges and universities to review their Title IX procedures and understand what allegations may compel an internal investigation to address complaints, as well as what procedures must be in place to protect the rights of the accused.

For now, institutions should stay tuned to Dykema’s updates on any guidance or requests for comment issued by the Department of Education. Any questions should be directed to Ray BissmeyerDonna McElroyRobert BooninJonathan FeldAndrea Frailey, or your Dykema relationship attorney.


[1] Notably, also on March 8, President Biden issued a second Executive Order establishing the White House Gender Policy Council within the Executive Office of the President, a step further demonstrating his administration’s approach to prioritizing gender equality.

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Photo of Ray Bissmeyer Ray Bissmeyer

Ray Bissmeyer works closely with businesses of all types to keep some of their greatest assets—their employees—from becoming costly liabilities. Recognizing that employment-related claims are an unfortunate cost of doing business, Ray develops employment policies, procedures, and training programs that can keep those…

Ray Bissmeyer works closely with businesses of all types to keep some of their greatest assets—their employees—from becoming costly liabilities. Recognizing that employment-related claims are an unfortunate cost of doing business, Ray develops employment policies, procedures, and training programs that can keep those costs to a minimum. When incidents arise, he advises clients on how best to manage investigations and any advisable disciplinary or remedial actions.

Photo of Donna McElroy Donna McElroy

Donna provides comprehensive representation, including counseling and compliance, and she regularly appears in state and federal courts, before administrative agencies, and in arbitration. She advises clients in various industries and verticals on a wide range of employment matters, such as discrimination, sexual harassment…

Donna provides comprehensive representation, including counseling and compliance, and she regularly appears in state and federal courts, before administrative agencies, and in arbitration. She advises clients in various industries and verticals on a wide range of employment matters, such as discrimination, sexual harassment, retaliation, trade secret and non-competition violations, wage and hour claims, reductions-in-force and mass layoffs, and union negotiations—and the potentially costly reputational hits that can accompany them.

Photo of Robert Boonin Robert Boonin

A skilled labor and employment attorney and highly educated labor management scholar, Rob advises clients across the United States, including closely held companies, publicly traded corporations, local units of government, K-12 school districts, charter schools, community colleges, and state universities.