Biden Administration Guts Due Process Protections for Students Accused of Sexual Misconduct

Under the new regulations, Title IX investigators can deny students access to the evidence against them.

College students investigated for sexual harassment or assault will once again be stripped of due process, thanks to new regulations released by the U.S. Department of Education in June.

The new rules, which apply to investigations under Title IX, part of a federal law that prohibits sex discrimination in education, rescind rules crafted and implemented by former Education Secretary Betsy DeVos during the Trump administration. They mark the return of the "single investigator model," which empowers a single college administrator to investigate, judge, and sanction alleged misconduct.

The Biden administration regulations also require schools to apply a "preponderance of the evidence" standard when investigating complaints if they do not use a clear-and-convincing or higher standard of evidence in all other comparable hearings*. Under that standard, investigators must find an accused student guilty if they conclude it is more than 50 percent likely that the allegations are true. Under the DeVos regulations, by contrast, universities needed "clear and convincing evidence" to punish an accused student.

Under the new regulations, Title IX investigators can deny students access to the evidence against them. They are required only to give accused students a "description of the relevant evidence." That description can be given "orally," meaning accused students are not entitled to review testimony, transcripts, or other records used to determine their guilt. The new rules also allow schools to deny accused students a live hearing and the opportunity to question their accusers.

The Biden administration's regulations mark a return to those implemented under President Barack Obama. Progressives have been largely supportive, despite concerns raised by free speech and civil liberties advocates. In 2018, when a group of Democratic senators sought to postpone the due process rules proposed by DeVos, the Foundation for Individual Rights and Expression noted that "since 2011, approximately 117 federal courts, as well as a number of state courts, have raised concerns about the lack of meaningful procedural protections in campus adjudications."

These judges, like many other critics, viewed Obama's Title IX rules, which Biden is now copying, as fundamentally unfair. "Whether someone is a 'victim' is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning," wrote Judge F. Dennis Saylor IV of the U.S. District Court for the District of Massachusetts in the 2016 case Doe v. Brandeis University. "If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision."

*CORRECTION: This article has been updated to clarify the circumstances under which the "preponderance of evidence" standard must be used.