The Biden Education Department’s new proposed Title IX Rule is going to fail. The rule would govern sexual misconduct cases in schools, as this misconduct is now viewed as prohibited sex discrimination in education, Title IX’s original purpose.
But the Biden proposal would remove due process protections for those accused, even though those protections are probably the biggest achievement of former Education Secretary Betsy DeVos. Specifically, the proposal would remove the requirement that colleges hold live hearings with cross examination.
Instead, campus Title IX personnel could hold “individual meetings” with those involved. Such meetings resemble the “single investigator model” used before DeVos which railroaded students so schools could wrongly find fault. The proposal also seeks to redefine “sex” to include gender ideology and same-sex orientation, major policy changes that executive agencies like the Education Department cannot make.
In truth, the proposal represents backward steps that are not supported by the American public and are likely to fail in court: Since 2011 when the Obama administration issued its infamous “Dear Colleague Letter” lowering the burden of proof so schools could more easily “find” sexual misconduct, hundreds of wrongly accused students have successfully sued their schools for due process violations in Title IX adjudications.
Though expected, the proposal’s attack on live hearings and cross examination still surprises since this topic was exhaustively debated during the DeVos rule-making and was also well considered by her staff. DeVos understood that accused students want live hearings to question accusers and test the coherence and veracity of their stories.
But DeVos also understood that complainants could be re-traumatized. So she found a compromise: Her rule, in effect now and by all indications a success, mandates live hearings and cross examination only at the college level and only by representatives of students. The questioning also must occur in a separate room, if requested.
Biden now wants to upset this balance?
“Individual meetings” are also obviously suspect given the similarity with the “single investigator model” that burned so many. Courts have repeatedly found informal methods, including where one Title IX staffer plays multiple roles — as investigator and adjudicator, for example — a due process problem.
And yet, the “individual meeting” approach invites just such informality and just such conflicts. Worse, Title IX administrators are heavy on politics and short on practical legal experience, especially with due process.
The National Association of Scholars found, for example, that only 1 of 59 Title IX employees surveyed had any legal experience protecting due process in court, while almost all had politicized backgrounds in women’s studies or gender violence. This means that they, among all people, are least likely to be professional and fair and most in need of formal proceedings where due process steps are required – that is, they need the DeVos rule.
Last but not least, the proposal’s attempt to redefine “sex” to include gender ideology and sexual orientation is already meeting fierce resistance. Obviously, Congress could have amended Title IX if it — and by extension, the American public — wanted a change as momentous and fundamental as the redefinition of sex in federal law.
Such change is precisely the kind of policy decision that only the elected branch of government can make, not a federal agency. Significantly, the Supreme Court just found another executive entity, the Environmental Protection Agency, overstepped its bounds and acted illegally in devising a clean water program. Those suing Biden over this rule, including state attorneys general, will no doubt lead with this case to show that Biden’s Education Department has similarly overreached.
So the proposed rule is going to fail, which means due process should win.
Teresa R. Manning is Director of Policy at the National Association of Scholars, former law professor at Scalia Law School, George Mason University and author of Dear Colleague: The Weaponization of Title IX.
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