Today, on the 50th anniversary of Title IX's implementation, the federal law that prohibits sex-based discrimination in education is getting a radical overhaul that will gut critical due process protections for students accused of sexual misconduct.
Education Secretary Miguel Cardona touted the new proposals as necessary revisions to Trump-era rules that reasserted the need for colleges and universities to treat both parties to a sexual misconduct dispute fairly and equally. The Biden administration has apparently embraced the idea—one promoted by many progressive victims' advocacy groups—that the rules propagated by previous Education Secretary Betsy DeVos made it too difficult to file sexual misconduct claims; Cardona's proposals would substantially revert Title IX compliance to the Obama-era standards, under which hundreds of students allege that they were wrongfully expelled from college following adjudication procedures that were manifestly unfair.
"Our goal was to give full effect to the law's reach and to deliver on its promise to prevent all students from sex-based harassment," said Cardona in a statement. "Our proposed changes would fully protect students from all forms of sex discrimination, instead of limiting some protections to sexual harassment alone, and make those protections include discrimination based on sexual orientation and gender identity."
Here are five revisions to Title IX sexual misconduct procedures under the new rules:
1. The definition of sexual harassment is substantially broadened. The DeVos rules had established two types of sexual harassment: "quid pro quo" harassment, in which an individual was asked to perform sexual favors in exchange for employment or some other favor; and "unwelcome conduct." Quid pro quo harassment only had to occur once to count as harassment, but unwelcome conduct harassment had to be "so severe, pervasive, and objectively offensive that it effectively denies a person equal access" to their education—a definition that came straight out of case law (Davis v. Monroe County Board of Education in particular).
Under the new rules, the bar is much lower: Cardona would define unwelcome conduct harassment as "conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person's ability to participate" in their education. This would open the door to Title IX investigations of speech that is sexual in nature and subjectively offensive to another person, without it needing to be severe and pervasive. The free speech implications are significant; legitimate classroom speech that was subjectively offensive and occurred repeatedly could now become a matter for the campus Title IX cop.
2. Schools no longer need to provide hearings for accused students to cross-examine their accusers. One of the most fundamental improvements of the DeVos rules was the establishment of cross-examination. A representative for the accused student—such as an attorney—had the right to scrutinize an accuser's claim during an actual hearing to adjudicate the dispute. Under the new rules, this is no longer the case.
3. The single-investigator model is back. Instead, colleges and universities may once again use a "single-investigator model," in which an administrator questions various parties privately and reaches a conclusion, often without any sort of hearing taking place at all. The new rules assert that investigators may engage in "individual meetings with the parties" where the parties never interact or pose questions to one another.
KC Johnson, a professor of history at Brooklyn College and expert on campus Title IX procedures, says that the resurrection of the single-investigator model is the most alarming aspect of the new rules.
"The possibility of wrongful findings, almost always biased against the accused, dramatically increases under such a procedural regime," he says.
4. Accused students aren't guaranteed access to the evidence against them. Under the DeVos rules, both the accused and the accusers were entitled to "inspect and review any evidence obtained as part of the investigation." Not so under the new rules: parties will only be guaranteed access to a "description of the relevant evidence." This description need not be written down; administrators can provide it "orally or in writing."
This is a significant revision that could substantially derail a student's efforts to prove their side of the story. An administrator could summarize the other party's claims incorrectly, giving the accused a wrongful impression about the case against them. In many of the cases adjudicated under the Obama-era standards, accused students did not even fully understand the accusations; some had to guess who their accusers were, and what they had said. The new rules would once again create situations where accused students would have to rely on the accuracy of statements made by the very investigators charged with determining their guilt.
5. University personnel would be required to report suspected sexual misconduct, even if the purported victim opposes this. The DeVos rules clarified that postsecondary educators were not required to report suspected sexual misconduct, following several cases where a Title IX investigation occurred despite the alleged victim's contention that she had not suffered misconduct. A university official cannot declare someone a victim; that person, the alleged victim, must initiate the investigation by filing a complaint.
Not so under the new rules.
"The Department's current view is that it is necessary to amend its Title IX regulations to clarify a recipient's obligation to take prompt and effective action to end all sex-based harassment, to help ensure that Title IX's protections are fully enforced, and to avoid recipients' use of Federal funds to support discriminatory practices," the new proposal reads.
University personnel would once again have to report rumored sexual misconduct to the Title IX office, whether or not this comports with the purported victim's view of the situation.
These are dire revisions to the campus sexual misconduct adjudication code. The new rules will substantially weaken accused students' rights, undoing the hard-fought but vital work of the previous administration.
"The Department of Education's proposed regulations seek to erase essential due process protections that are required by the Department's current Title IX regulations," says Joe Cohn, legislative and policy director at the Foundation for Individual Rights and Expression. "They authorize institutions to forego live hearings, returning to a single investigator model that is incompatible with the basic requirements of fundamental fairness. In allowing a return to the single investigator model, the proposed regulations also eliminate the right to meaningful cross-examination, and thus the current right to have legal counsel conduct a cross-examination. It's clear that students accused of sexual misconduct cannot rely on this Department of Education to ensure their basic rights are respected."