Biden’s Title IX Overhaul Raises Fears of Flawed Sexual Misconduct Investigations
‘The proposed regulations would give the Department of Education’s blessing to schools that want to cut corners.’
The rules of the road are once again set to change on college campuses nationwide, with reforms made under President Trump being undone.
President Biden’s Title IX overhaul would lower the legal threshold for reporting and investigating Title IX abuses from that established in 2020 by the Trump administration education secretary, Betsy DeVos.
A return to the standards set by President Obama in his 2011 “Dear Colleague” letter raises fears about the constitutional rights of students and professors as high-profile sexual harassment cases grip college campuses.
“The proposed regulations would give the Department of Education’s blessing to schools that want to cut corners,” the legislative and policy director at the Foundation for Individual Rights and Expression, Joe Cohn, told the Sun.
Mr. Cohn explained that these regulations would enable educational institutions to forego live hearings, which are necessary to gauge witnesses’ demeanor when evaluating their credibility. They would also eliminate the right to have legal counsel conduct a cross-examination and prevent the accused from verifying summaries of the allegations against them.
Some cautiously support the changes. “Every party to a Title IX process has a right to fully see and inspect and review the evidence before a decision has been made,” the president of the Association of Title IX Administrators, the leading industry association for Title IX compliance, Brett Sokolow, argued to the Sun.
Mr. Sokolow claimed that the new rules would not eviscerate due process as they blend Mr. Trump’s “respondent-favoring” rules with Mr. Obama’s “complainant-favoring” rules. This model caters to small and under-resourced K-12 schools, not the complexities of higher education, Mr. Sokolow said. It led to a wave of litigation issues after it was implemented in 2011.
Mr. Sokolow urges the Biden administration to embed greater protections for the accused in the rules before finalizing them in six months. Specifically, the rules should require universities to release a written report, not a verbal summary of the evidence, and ban the “single investigator” model, in which school administrators are authorized to select one individual to act as investigator, judge, jury, and advocate.
“Even someone who is not consciously biased may subconsciously be biased,” Mr. Cohn added. “Having only one person play all of those functions increases the chances that whatever they bring to the table will undermine the impartiality of the proceedings.”
Progressive advocacy groups emphasize that Mr. Biden’s Title IX rewrite will expand defenses against the discrimination of transgender students and make it easier for victims of sexual misconduct to file claims.
However, the current rules require that schools clearly publicize how students can file formal complaints with their Title IX offices and follow the United States Supreme Court’s “high but attainable standard for what type of behaviors constitute conduct that is actionable,” Mr. Cohn said.
In a case decided in 1999, Davis v. Monroe County Board of Education, the Nine held that this standard covers behavior that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”
Mr. Biden’s new rules would depart from this definition by widening the range of scenarios and the type of speech that justifies a Title IX complaint. Due process protections would attach to the respondent of the allegations, not the person initiating them. “They don’t define the rights of employees as employees,” Mr. Sokolow said. “They define their rights as employees with respect to who accuses them.”
Although professors usually have broader contractual rights than students, they could still be subject to procedural flaws amid the wave of sexual harassment allegations in recent years targeting top professors at universities.
“There is a long list of examples where Title IX was used as a tool to silence legitimate academic arguments the professors advanced,” Mr. Cohn argued. “The government needs to be especially careful to ensure that it doesn’t incentivize campus administrators to infringe upon the academic freedom of anyone with teaching or research responsibilities at universities.”
In the last decade, more than 600 students have filed lawsuits against higher education institutions in federal or state courts alleging they were wrongfully suspended or expelled after Title IX investigations. More than 200 of these suits were successful.
“That body of case law,” Mr. Cohn said, “sets the Department of Education and every institution that will be pressured to follow its regulations into a direct collision course should this be adopted.”
Mr. Sokolow explained that the regulations “present the opportunity, because they’re flexible, for schools to reduce the error rate on excellent practices.” However, they also raise the risk of schools “increasing the error rate by bringing under-trained, inexperienced decision makers in who don’t make the kinds of high-quality decisions we’re trying to achieve.”
The degree to which schools implement these rules will vary. More prestigious colleges and universities will believe that “it’s important for their students, or it’s important reputationally, it’s part of their culture,” Mr. Sokolow said. Meanwhile, state institutions, community colleges, and K-12 schools can typically only afford to meet the bare minimum of Title IX due to a lack of resources and advocacy.
“At a lot of schools, Title IX excellence is in place because there’s a Title IX coordinator who’s driving that and maybe even fighting other senior administrators to make sure that that program has the support that it needs,” Mr. Sokolow said. “This will live or die on whether there’s a champion to fight for excellence within the program.”
Mr. Cohen asked: “If you were a parent and you had two students in college, and one of them were the victim of sexual misconduct, and one were falsely accused, wouldn’t you want both of them to be given a fair shot? We need to have procedures in place that prioritize the well-being of students in each of those situations.”