Reason Roundup

Biden Vows To Destroy Campus Due Process Again If Elected

Plus: Homeland Security has detained thousands of pregnant women, Ginsburg wrong about "seamless" contraception coverage, and more...


U.S. Secretary of Education Betsy DeVos is taking a dumb but predictable bashing after announcing changes to the government's guidance on campus sexual assault and harassment. The shift regarding Title IX—the rule banning sex-discrimination in public education (including any college receiving federal funds)—has elicited a promise from former Vice President Joe Biden to reverse the changes should he be elected president.

"It will be put to a quick end in January 2021, because as president, I'll be right where I always have been throughout my career—on the side of survivors, who deserve to have their voices heard, their claims taken seriously and investigated, and their rights upheld," Biden said yesterday.

Alas, Democratic directives on how to treat people bringing sexual assault allegations is getting a tad confusing lately. A recent sexual assault allegation against Biden from former staff assistant Tara Reade has been ignored, downplayed, or torn apart by his supporters and by prominent liberal feminists. It seems student victims are to be believed to such an extent that protections for the accused aren't even necessary (a standard that also applies to folks bringing claims against non-favored politicians). But the narrative inconsistencies and unverifiable (or unbelievable) claims that Democrats say impartial mediators should never, ever scrutinize in campus assault cases are all apparently fair game when coming from a woman alleging that the Democratic presidential nominee assaulted her.

Inconveniently, Biden himself spent much of his term as vice president championing ideas about sexual assault that make Reade's claims against him actionable (even without additional evidence) and render moot any testimony Biden might offer in his own defense. (Read more on Biden and Title IX from Emily Yoffe.)

Under the Obama administration, Title IX was mutated to give bureaucrats control over a wide range of campus conduct, speech, lesson plans, and interpersonal interactions, while simultaneously hacking away due process protections for students and staff accused of misconduct.

Once regarded mainly as a means of regulating women's sports teams, Title IX has since expanded to allow federal micromanage of college disciplinary policies regarding everything from rape to offensive comments. But with an eye toward correcting historical bias against sexual assault and sexual harassment victims, this shift—a huge focus for the Obama administration, and in particular for former Vice President Joe Biden—was interpreted and implemented in a way that almost obliterated anything like due process for accused students and staff, and created a weird system wherein third parties could report Title IX offenses against "victims" who had no complaints themselves.

In November 2018, the Department of Education first proposed a change to the Obama administration's guidance on interpreting and enforcing Title IX. The rules announced yesterday are similar to that proposal, as Robby Soave noted here:

Most notably, the government has abolished the single-investigator model, which previously permitted a sole university official to investigate an accusation of misconduct, decide which evidence to consider, and produce a report recommending an outcome. Under the new rules, the final decision maker must be a different person than the investigator, and a finding of responsibility can only be rendered after a hearing in which a representative for the accused is able to pose questions to the accuser—i.e., cross-examination.

Importantly, the new rules narrow the scope of actionable sexual harassment to exclude conduct that ought to be protected under the First Amendment. Obama-era guidance had defined sexual harassment as "any unwelcome conduct of a sexual nature." The new rules keep this definition but add that the conduct must be offensive to a reasonable person, severe, and pervasive. In practice, this should mean that schools will no longer initiate Title IX investigations that impugn free speech.

[…] The new rules will also end the pernicious practice of universities initiating Title IX investigations in cases where the alleged victims are not interested in this course of action.

Based on the reactionary commentary, you might think the new rules banned investigations into sexual assault and harassment altogether. Some of it is so over-the-top that it borders on outright lies—an especially gross tactic when you consider how such messages might effect students who are sexually assaulted.

For instance, Fatima Goss Graves, president and CEO of the National Women's Law Center, said the new rules send "the message loud and clear that there is no point in reporting assault."

Rep. Barbara Lee (D–Calif.) described the rules as "attacking student survivors' rights."

Sen. Mark Warner (D–Va.) said the change "will undoubtedly make students less safe."

In addition to misrepresenting the Title IX guidance changes, statements like these also overstate how well the system was working and who wanted to change it. It's not just students accused of rape and assault who have objected to how claims against them were handled (although there's been plenty of that); feminist professors, impartial education groups, and legal experts have all criticized how Title IX was interpreted and enforced. Students bringing harassment and abuse claims themselves, or advocating on behalf of victims, have also complained that the whole system is still messed up.

Under Obama and Biden, Title IX enforcement didn't make things better for campus sexual assault victims and students bringing Title IX complaints, it just made things worse for those accused or associated with the accused.

And the policy shift won't fix all of these problems, but it can fix some.


Homeland Security has detained thousands of pregnant women since 2016. A new report from the Government Accountability Office (GAO) looks at pregnant women detained by the Department of Homeland Security (DHS) and its component units, like Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). In December 2017, Homeland Security "remov[ed] language that stated that pregnant women would generally not be detained except in extraordinary circumstances or as mandated by law," notes the GAO in an explanation of why it undertook the study. The GAO looked at data from 2015-2019 ("including detention data, inspection reports and data, and complaints"), and talked to federal agents as well as 14 women that DHS detained or released.

ICE alone detained more than 4,600 pregnant women in 2016-2018. This included 1,380 in 2016, 1,160 in 2017, and 2,098 in 2018. Nearly half were in their first trimester, 41 percent in their second trimester, and 10 percent in their third trimester at the time of intake.

Most of the women detained—from 91 to 97 percent, depending on the year—were non-criminal detainees. Ninety percent were first stopped by CBP and passed on to ICE, where pregnant women were held for periods ranging from one week or less (for 68 percent) to more than a month (10 percent). "Nearly 4,400 of ICE's over 4,600 detentions of pregnant women resulted from CBP arrests," the GAO reports.

Between January 2015 and July 2019, ICE recorded one pregnant woman giving birth in custody, two having abortions, and 58 involuntarily miscarrying. From the start of 2015 through February 2019, "pregnant women encountered or apprehended by CBP experienced 43 births, three miscarriages, and six stillbirths after being taken to the hospital by CBP."



Does the Affordable Care Act mandate 'seamless' access to contraception? No, answers Josh Blackman at The Volokh Conspiracy. But you may not know that's the case from Wednesday's Supreme Court hearing about the Affordable Care Act, birth control coverage, and employers who object.

Justice Ruth Bader Ginsburg said that "the glaring feature of what the government has done in expanding this exemption is to toss to the winds entirely Congress's instruction that women need and shall have seamless, no-cost, comprehensive coverage. Seamless, no-cost, comprehensive coverage…. And I just wonder if I –if there is no substantial burden, how can the government justify an exemption that deprives those women of seamless coverage?"

Later, Ginsburg said "the government is throwing to the wind the women's entitlement to seamless, no cost to them."

But, as Blackman notes, "the word 'seamless' does not appear anywhere in the ACA." It came from a court opinion in the 2014 case Priests for Life v. HHS.


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