5 Ways Biden's New Title IX Rules Will Eviscerate Due Process on Campus
The new rules would drop live hearings, bring back the single-investigator model, and limit accused students' options.
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."
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It's OK, the changes weren't announced by a mean tweet. You Biden voters can rest easy.
The Ex-Girlfriend Empowerment Act will ensure that sexual abusers of women will be held accountable. This is a great day for all victims of sexual abuse and for women in general.
All men are naturally guilty, right?
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Pretty sure we had a POTUS who tried to bring some sense to this issue, but TDS-addled shit-piles couldn't bring themselves to give up an adolescent focus on personality and deal with policy.
So now we have a POTUS courtesy of those with limited mental development.
BINGO. This is what they wanted. Not sure why they are complaining about it.
Stopping mean tweets were clearly more important than anything else.
Looks like gender-specific schools are poised for a comeback, although how schools will handle gender-fluid students is a mystery yet to be solved. Market failure!
Students should opt for total abstinence from sex education, for the kangaroo DNA in this administration's Justice and Education appointees runs stronger than Tank Girl's wildest dreams.
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Is it even possible? Aren't they just a bit contradictory?
Who says government can't innovate!
They had to do it both ways to make sure they got all the results they were looking for.
The gold standard for a poor justice system used to be "judge, jury, and executioner". Now it adds both prosecutor and defender into the mix.
Two innovations in the same rule! Who says government can't innovate?
You forgot the part where Dolores Umbridge is the only one that volunteers to serve in the position.
There are plenty of Umbridge clones out there.
My favorite Title IX staff is Heather Cowen who investigated the Drew Sterrett case at Michigan. Since the case wasn't strong enough she invented damning details, adding them to the "final" report when they weren't in the draft report, her notes, and were contradicted by the accuser. After this case instead of being fired she was hired as the Title IX Director at the University of New Mexico (from memory).
This is what Title IX stands for.
Torquemada approves.
Nah, he had SOME scruples. Title IX "investigators" do not.
We’ve got to get rid of the left.
It works for the j6 committee.
Wha the heck -- did I scare everybody else off?
What do you expect, walking into the comments section wearing nothing but a leather mask and spiked collar like that?
But the leather spiked chastity belt was ok? I am losing it.
Put on some pants. You're scaring the cat.
Did you look in a mirror?
Schools no longer need to provide hearings for accused students to cross-examine their accusers.
A hearing where only the one side is heard from? That sounds oddly familiar...
Democrats would never do that, additionally even if they did, they wouldn't hire TV directors and producers to produce it or broadcast it during prime time, with only hand picked members, with no cross examination, present only their evidence, force witnesses to participate through warrants and they definitely wouldn't do it during the summer before an election they are likely to lose by huge margins. I have been assured they are the defenders of liberty and democracy.
And Reason would never quote it authoratively, day after day. No, they'd see right through it, make fun of it.
The more shit they do like this, and the rather questionable, Constitutionally speaking, trials of people who weren't even in the Capital Building, the more sympathetic the Jan 6th rioters become for me. I was pissed as fuck at them at the time, now these government abused any pretense at due process, the less pissed I am at the rioters and the more pissed I am at the government, especially the Democrats.
You do realize, the crimes of the rioters are independent of whatever Democrats do or don't do?
Not when the deny juris prudence and the constitution, it isn't.
The Dems are doing far worse than the protesters did.
Nope.
Fun fact: Democrat women secretly love being sexually abused - hence why they all wanted to line up to suck Bill Clinton’s dick. They might marry pussies, but fantasize about getting it good and hard. Now with title IX, they can have their cake and eat it too.
I see I'm not the only one who had read Margaret Atwood's short story, "Rape Fantasies".
(not making that up, BTW)
But in her short story, Atwood explains that rape is not really rape if the woman secretly desires it! And she claims to stand up for women's rights.
So... Howard Roark and Dominique Francon, then? Who know Atwood and Rand had so much in common?
E Jean Carroll definitely has.
Which is why they vote for fellow Democrats
Who was it that nominated Nancy DeVos? Oh that's right. The guy you were determined to drive out of office. Fuck you Robbie. You got exactly what you asked for.
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 is the origin of the crybully. To ensure success the two actors have to work together. There has to be a claim that their fear prevents them from participating, and the Title IX staff has to refuse to subject this claim to reasonableness. Since this is the only way the system works this is how staff is trained and expected to work. The resulting principles and teamwork have expanded from their Title IX origin which is how people now claim Halloween costumes make them unsafe.
https://twitter.com/ParkerThayer/status/1540046686764122112?t=YcPJ5evtHFX0B2qw6Htf6Q&s=19
Biden’s Title IX reform is a lot more sinister than you think, a thread
TL;DR- George Soros paid for it
The Biden Administration has a ghost writing problem, a secret organization called Governing for Impact has been writing regulatory policy for the Biden admin, and we blew the lid off the scheme a few months back:
The whole thing is bankrolled by ~$14 million in funding from Soros, funneled through the Arabella Advisors network, the Left’s massive $1.7-billion money.
More on that here:
It’s a super tight knit organization it has a deep-web website that we unearthed that acts as a warehouse for all of the regulatory policy that it pays Harvard law interns to write.
Don’t believe me? See for yourself:
One of their regulations in particular calls for the Biden administration to issue a regulatory clarification that the Executive branch now considers Title IX protections to also include a student’s gender identity.
Here is the PDF:
This is EXACTLY what the Biden administration just did.
Let’s compare:
It is DEEPLY concerning that Governing for Impact, a project of George Soros that has intentionally concealed itself, has this much power over the way regulations are written.
[Links]
TL;DR- George Soros paid for it
And theeeere we go. It's not enough to argue against Biden's changes on their merits (or lack thereof). We have to bring in the SOROS!!!!!! paranoid nuttery while we are at it.
If we do get 4 more years of Biden it will be because too many people are turned off by the paranoid bullshit that Team Red has devolved into. And you are not helping.
Sure, let's no longer try to score points by flogging the bogeyman of "big money" in politics. At least not since Democrats figured out how to do it.
It’s a proven fact that Soros funds a lot of this bullshit. You’re the nutter.
Pretty much all laws and regulations are written by special interest groups. Legislators have neither the time nor knowledge to do it themselves, and neither do regular citizens.
Hey, justice is too important for white patriarchal shit like due process and evidence, and the rest of that "rule of law" crap.
University Title IX programs get my respect when they make clear that they are not in the business of criminal investigation or adjudication and will first refer all criminal allegations to civilian authorities to complete investigation before considering Title IX complaints under preponderance standard with full hearing/participation of both sides. "Believe all victims" is an attempt to negate presumption of innocence, and is based on (where females are complainants) the sexist view of female weakness.
Fuck Joe Biden.
138 days.
Fuck Joe Biden
Yeah, these changes are terrible. It is no surprise that they are the result of the utilitarian model of liberty that is favored by many on Team Blue. That is, the idea that liberty should only be protected if it serves some utilitarian positive goal. So speech should only be protected if it is "constructive". Freedom of the press should only be protected if it is "legitimate journalism". And now, due process should only be protected if it "serves a legitimate interest", and of course stopping sexual assault on campus to them is a greater legitimate interest than due process of the accused. It is sad; I miss the day when more people valued liberty for its own sake instead of demanding balancing tests for this or that freedom.
And still nothing from the ACLU
So... a return to political norms. Just like Reason wanted.
I don't have a problem with this anyway; men are clearly not wanted on university campuses anymore, so let's abandon them. Who needs the student loan debt, indoctrination, and useless degrees anyway?
Biden's goal is to "Eviscerate Due Process" completely in the US. What I find amazing is Reason writers can't see that.
Did the Jan. 6th defendants get due process?
Did the innocent Border guards get due process?
There is a pattern here.
If I was a guy college these days, I would report immediately that I was sexually assaulted/harassed after sex. It is immediately apparent to me that the first one who reports will be the one with the high ground.
(yes, you could argue that a guy has no chance even if he reports first, but I'm not gonna report regular sex. I'm reporting that she hit me, made me eat shit, got me drunk, etc. With no evidentiary requirements under the new model, I can say anything I want and they have to believe me.)
A few years ago we were discussing a water cooling unit that we were designing. One of the HR interns was sitting in on the meeting. After the meeting I get a call from our HR rep asking me to come down to her office. She told me that she got a complaint about sexual innuendos being made at the meeting. I asked for more information and she called the intern in. The term that she was referring to was "head pressure". I went back to my office and grabbed a book on fluid design and showed her the definition.
Head pressure is the pressure at the input of a pump. It can be a positive or negative value and has to be considered. The intern thought that it was a sexual reference. The Intern was told by her Instructors and advisor to report anything of a sexual nature. I said "I'm glad she wasn't there earlier when I was wiring a transformer and asked for a "pair of dykes" (wire cutters)". Because of this her project was to make a pamphlet of engineering terms that could possibly be mistaken for sexual terms. We hand that pamphlet out to all new employees and interns. With our Colleges and Universities having a "Fire, Ready Aim" attitude towards anything of a sexual nature, these changes are bad news. My employer has been pushing for me to take some classes at a College a few miles down the road. I keep putting it off and I'm having my reasoning confirmed almost every day.
OK, so did 2009-2013 not happen? Because the Obama administration tried all these same things, and the result were several lawsuits by students against schools, most of which were successful (in fact, it's possible they all were).
I should take another degree. It sounds like it could be very profitable.