A New President: What Does It Mean for Fraternities and Sororities?

Micah Kamrass, Fraternal Law Partners, mkamrass@manleyburke.com

On January 20, 2021, the Biden/Harris administration will be sworn in. With the change in administrations, some have wondered how this may impact fraternities and sororities.

         While this can be somewhat difficult to project, the best guide to how the Biden/Harris administration may view certain pertinent issues is an examination of how the Obama/Biden administration viewed those issues. Certainly, President-elect Biden and Vice President-elect Harris are no strangers to the issues of higher education and fraternities and sororities. While President-elect Biden was not a member of a fraternity during his undergraduate years, his late son Beau was a member of Psi Upsilon, which helped endow a scholarship in Beau’s name at the University of Pennsylvania following Beau’s death. Vice President-elect Harris is a proud member of Alpha Kappa Alpha Sorority, Inc.

         Two areas where the Biden/Harris administration could signal a sharp departure in policy from the Trump/Pence administration both center on issues of Title IX. The first is the matter of gender-identity and single-sex organizations. The Obama/Biden administration Department of Education issued guidance stating that fraternities could admit transgender men and sororities could admit transgender women without jeopardizing their single-sex status, if the organizations chose to do this. The Trump/Pence administration revoked this guidance, and in the waning days of their term explicitly stated they  do not believe single-sex groups can admit transgender individuals under Title IX. It is safe to expect the Biden/Harris position to be more similar to the guidance from the Obama/Biden administration on this matter.

         The other Title IX related question centers on questions of due process. President-elect Biden was deeply as Vice President in the creation of the Obama-era Title IX regulations. Citing a belief that those regulations tilted the balance of due process rights too far toward the accuser and too far away from the accused, the Trump administration dramatically overhauled the Title IX due process regulations, which went into effect earlier this school year. As a candidate for president, President-elect Biden criticized the new Title IX regulations. It is therefore safe to also assume the Biden/Harris administration will seek to revise these regulations. However, the revisions may not be as dramatic as some may expect. Many of the changes found in the 2020 regulations were based on federal court decisions that will remain in effect, regardless of future changes to Title IX regulations from the Executive Branch.

         From the perspective of Congress, it is difficult to forecast any major changes as a result of the change in control of the Senate.