On April 4, 2011, Joe Biden traveled to the University of New Hampshire to unveil the Obama administration’s new policy toward campus sexual assault. He portrayed campuses as awash in sexual violence, with educators indifferent to the plight of victims in their midst. As if it were still the 1950s, Biden directed a message to “all you guys in the audience,” saying, “No matter what a girl does, [it’s …] never okay to touch her without her consent.”

A 1999 Supreme Court decision interpreted Title IX—the 1972 law banning sex discrimination at colleges and universities that receive federal funds—in such a way that required colleges and universities to address sexual-assault allegations. The Obama administration, Biden revealed, planned to use guidance from the Education Department’s Office for Civil Rights (OCR) to pressure schools to crack down. As colleges and universities quickly bowed to this “Dear Colleague” letter and changed adjudication procedures to make guilty findings more likely, an Education Department staffer marveled at how the OCR “speaks softly and carries a big stick.”

Just over 13 years later, the Biden administration unveiled new regulations designed to restore the Title IX policies of the Dear Colleague letter era after changes made to them during the Trump administration. Unlike in 2011, however, in 2024 Biden didn’t travel to a university to announce the new policy. That anti-Israel student protests would have disrupted any presidential appearance doubtless discouraged such a move. But a high-profile announcement also would have spotlighted the specifics of the new regulations, which include a virtually unprecedented rollback of student rights. Beginning August 1, the federal government instead will oversee an opaque system that maximizes the power of Title IX bureaucrats on campuses to decide the fates of accused students.

The Biden regulations, which span more than 1,500 pages, include some uncontroversial provisions, such as clarifying the rights of pregnant students under Title IX. They also extend Title IX coverage to allegations based on sexual orientation or gender identity and expand the definition of harassment in ways that threaten First Amendment protections in the process. But since most colleges already utilize absurdly broad definitions of speech-related harassment and have progressive policies on LGBT issues, the practical effect of these changes likely will be marginal.

Not so regarding sexual-misconduct allegations. In 2017, citing a wave of federal court decisions in lawsuits filed by accused students, Trump’s education secretary, Betsy DeVos, made clear that the federal government would welcome universities placing more emphasis on procedural fairness in the Title IX process. Few schools responded. The sprawling Title IX bureaucracy and organizations representing accusers’ interests successfully preserved the status quo.

In response to that, DeVos’s department promulgated new Title IX regulations that forced schools once and for all to adjudicate sexual-assault claims fairly. The process would need to begin with a written complaint and provide sufficient notice for the accused student to respond. He would be presumed innocent and could not receive an interim punishment based solely on the allegation. After an investigation, the university would share the gathered evidence with both parties. Adjudication would occur at a live hearing, where the investigator could not also be a decision-maker, and each student’s adviser could cross-examine adverse witnesses. Each student also could present expert witnesses to advance his or her case. The instructions for hearing panelists could not use sex stereotypes and had to be posted publicly on the school’s website. Since August 2020, every college student accused of a Title IX offense—from Maine to California to Florida—has possessed these rights.

Virtually every college or university that submitted a comment to the Education Department on the DeVos regulations opposed these procedural reforms. But perhaps the most ferocious response came from Catherine Lhamon, who had headed OCR for Obama/Biden from 2013 through 2016. Lhamon charged that the DeVos regulations would bring back “the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.” Despite this baseless remark, Biden renominated her as OCR head after his election in 2020. Every Republican senator voted against her confirmation, but Senate Democrats held firm, and in 2021, Lhamon was back in charge of Title IX.

Lhamon has produced regulations that either weaken (access to evidence, presumption of innocence, access to training materials) or eliminate (written complaint, expert witnesses, live hearing, cross-examination) the procedural rights the DeVos rules provided to accused students. The move reflects her—and Biden’s—long-standing view of the Title IX adjudication process less as an effort to determine the truth of the complainant’s allegation than as a way to design procedures that encourage students to file complaints regardless of their merit. In fairness, Biden seems genuinely unable to envision how his approach will increase wrongful findings of guilt; in his many public statements on the issue, the president appears never to have considered the possibility that a female student’s Title IX allegation might be false or simply mistaken.

Remarks in an oral argument—ironically spoken the day before the release of the new regulations—from U.S. Appeals Court Judge Diane Sykes show the problem with Biden’s perspective. “The consequences for the parties in [a Title IX] proceeding,” Sykes correctly observed, “are one-sided: Only the respondent is subject to sanctions.” The effects of the administration’s procedural rollback, then, will fall almost entirely on respondents—students accused before campus courts of sexual offenses.

Eliminating the requirement for a written complaint, for example, makes it harder to show how allegations often evolve as the accuser attempts to neutralize exculpatory evidence. But to the Biden Education Department, “the effectiveness of Title IX is better advanced if the requirements for making a complaint are not overly technical or difficult”—as if it’s too “technical” for an adult college student to begin the process by writing down the specifics of her claim.

Likewise with cross-examination and a live hearing. The Supreme Court has celebrated the value of requiring “the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth.’” Numerous federal courts have stressed the importance of a live hearing to principles of due process for campus sex claims. But to the Biden Education Department, “the requirement for live hearings with advisor-conducted cross-examination may have chilled reporting of sex-based harassment,” so they needed to go.

This change will revive the single-investigator model that prevailed before the DeVos changes. In this model, one person hired by the Title IX coordinator (or the Title IX coordinator herself) interviews the witnesses separately and then renders a decision. But “the dangers of combining in a single individual the power to investigate, prosecute, and convict, with little effective power of review, are obvious,” U.S. District Court Judge F. Dennis Saylor IV recognized in a 2016 decision. “No matter how well-intentioned, such a person may have preconceptions and biases, may make mistakes, and may reach premature conclusions.”

Ten days after the regulations were announced, a California appellate court ruled in favor of an accused student in a case that reinforced Saylor’s point. USC, using a single-investigator model, initially found the student guilty. A state court ruling in an unrelated case prompted the university to redo the Title IX process with a hearing. The student then was cleared—in part because the accuser herself assured the hearing panel that no misconduct had occurred. Had the single investigator reached “premature conclusions” to find an obviously innocent student guilty? As of August 1, the Biden regulations will permit USC to return to the single-investigator model.

The administration dismisses concerns about unfairness by noting that its regulations do not mandate weakening procedural protections for the accused but merely give colleges the “flexibility” or “discretion” to do so. This sleight of hand satisfied the New York Times—which, in a straight news article, preposterously described the new regulations as having “struck a balance between the Obama and Trump administration’s goals.”

The Times appeared unaware that we have a record—from 2011 through 2020—showing how colleges and universities used the discretion they once again will enjoy. The campus civil-liberties group FIRE surveyed the Title IX policies of 53 leading universities just before the adoption of the 2020 DeVos regulations. None of the 53 appeared to allow full discovery. Only one gave accused students a timely, written notice. Just two allowed cross-examination; likewise, only two allowed meaningful participation by the accused student’s adviser. Fewer than 30 percent allowed a live hearing.

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In areas where the new regulations don’t entirely revoke existing procedural safeguards, erosion is the preferred option. The presumption of innocence remains—but now schools can, before the adjudication, remove ostensibly innocent students from classes or dorms, or impose one-sided “no contact” orders, provided the school deems the interim punishment a “supportive service” rather than a disciplinary action. Training material no longer will be posted on university websites, on grounds that doing so is too “burdensome” for schools; instead, accused students will need to request the information formally.

The most significant erosion involves access to evidence. To safeguard against investigative bias, the DeVos regulations required schools to provide all evidence gathered in the investigation to both the accused and the accusing student. As of August, schools need provide only the investigator’s summary of the evidence. If the accused student wants to see the evidence, he’ll need to formally request it—and even then will receive only evidence that university officials deem “relevant.”

It’s not hard to imagine how this new limitation will be abused. In 2012, a female Amherst College student seduced her roommate’s heavily intoxicated boyfriend. More than a year later, she reinterpreted the incident as a sexual assault. She filed a Title IX charge, and the male student, who had no memory of the night in question, was found responsible and expelled. The accused student eventually tracked down his accuser’s contemporaneous text messages, which eviscerated her credibility and even had her lamenting an inability to develop a “good lie” to explain away the encounter to other students. When Amherst refused to reopen the case, the accused student sued the school. After an unfavorable court decision, the college eventually settled with the accused student, but not before its investigator testified that the text messages were irrelevant, because they had been written before the accuser decided she had been sexually assaulted. Future Title IX investigators will now have the discretion to withhold obviously exculpatory evidence, simply by imitating the Amherst investigator’s strategy of deeming it irrelevant.

The regulations promise that their generalized requirement that the Title IX coordinator and the investigator be fair and free from bias will prevent cases like the Amherst one. But few if any Title IX coordinators will publicly admit their bias (they’d be out of a job if they did). Nor do universities themselves have a vested interest in a bias-free adjudication of sexual-assault allegations. As Justice Steven Ecker, a Democratic appointee to the Connecticut Supreme Court, noted in a 2022 oral argument, “For better or worse—and it may be for better—my impression is that [elite universities] generally have a very strong incentive to make this process as friendly to the complainant as possible,” since doing so enhances recruitment of female applicants. The bias, in short, is embedded within the Title IX system. The DeVos regulations recognized this problem and forced colleges to adopt fair procedures to protect against it.

Even the American Civil Liberties Union—which initially condemned the DeVos regulations for “inappropriately favoring the accused” and is generally now more of a liberal advocacy organization than a rights defender—has expressed concerns about the loss of live hearings and cross-examination. On the first day they could act, nine states (Alabama, Florida, Georgia, Idaho, Louisiana, Mississippi, Montana, South Carolina, and Texas) joined a handful of interest groups in filing three separate lawsuits against the regulations. The states’ primary concern, however, is the expansion of Title IX to apply to gender identity; even if they prevail, it seems likely that the regulations’ procedural rollbacks will go into effect.

For wrongly accused students, this will be a return to the bad old days of 2011–20. During that time, the best chance that a falsely accused student had of achieving justice too often was a federal lawsuit, filed after the near-inevitable finding of responsibility in a Title IX process in which the student lacked any meaningful opportunity to defend himself. I have tallied the number of such cases at just under 300 since adoption of the Dear Colleague letter. It’s about to start going up again.

Photo: AP Photo/Darron Cummings, File

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