Biden and Title IX: A Setback (Pt. 1)

This past June, the Biden administration unveiled its proposed changes to the Title IX rule, many of which seek to modify or eliminate previously enacted rules from Education Secretary Devos under the Trump administration. In a June press conference that same month, Education Secretary Miguel Cardona heralded the new regulations, seeing them as a requisite step for universities to treat both parties in sexual misconduct disputes with fairness and equality (Soave, 2022). Yet despite his optimistic and confident rhetoric, Cardona and the Biden administration’s policies accomplish just the opposite. Instead, the new rule permits the disheartening return to a campus environment, dating back to the Obama administration, in which administrators overzealously prosecuted sexual misconduct cases against accused students, at the expense of due process and free speech, while doing so under a quasi-legal and largely one-sided framework for adjudications - which oftentimes sacrificed procedural fairness in favor of the accuser's case. Thus the new regulations more aptly signify a regression - one that permits colleges to deny accused students the most basic elements of fairness and due process, and institute adjudication procedures that are characteristically unfair, in the name of combating an endemic problem on college campuses.

The Broadened Definition of Sexual Harassment

Unlike DeVos’s previous regulations, which defined sexual harassment as conduct “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to their education,” (§ 106.30(a)) the Biden administration’s new definition broadens and lowers the bar for conduct to be categorized as harassment. Under the new rules, harassment is defined 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 (proposed § 106.2). 

One initial problem is the definition’s substitution of “so severe” with “sufficiently severe,” alongside the inclusion of “subjectively and objectively” within the revision. Aside from introducing a substantial number of subjective elements into a statute that is supposed to be utilized in an extensive number of campus settings throughout the U.S., the revised definition fails to clearly distinguish between the type of hostile-environment sexual harassment that it seeks to identify, and a broad number of protected speech categories. Consequently, this would open the door to Title IX investigations of routinely protected speech that, while sexual in nature and lacking a degree of severity and pervasiveness, could be subjectively offensive to another individual (Soave, 2022). Classroom discussions of sexual topics, jokes about romantic relationships, satires about the #MeToo movement, and even using the word “pussy” in a conversation - all of these items, under the Biden administration’s Title IX rule, constitute sexual-based harassment as long as the content of the speech or conduct is subjectively offensive and occurred on a regular basis.

Despite the administration’s deterministic effort to tackle the issue of harassment, a problem that has plagued college campuses for many years (Moody, 2022), it is unwise to believe that chilling and suppressing constitutionally protected speech is an adequate strategy for doing so. In an educational setting where differences of all types should be championed and permitted to flourish, students should not have to fear a Title IX investigation and disciplinary action for speech that is not only protected by the First Amendment but is at the very heart of what an institution of higher education is meant for - teaching the next generation of young minds to think differently and broaden their horizons on a never-ending array of topics.

The Erosion of Due Process…

Alongside the removal of key provisions from Devos era guidelines on Title IX adjudications - including the requirement that schools hold live hearings, provide students with the right to consult legal counsel, and furnish the evidence against the accused - the new regulations reduce the evidence colleges are required to provide accused students. Colleges are now only obligated to provide a simple written summary, while also enabling administrators to utilize the “preponderance of evidence” standard, a remarkably lower bar than the previous guidelines' “clear and convincing” requirement (proposed § 106.45(h)(1)). Many of these previously specified rules, which recognized the significance of safeguarding due process on campus and in ensuring a higher degree of impartiality in campus proceedings have been cast aside, permitting administrators to employ measures in Title IX proceedings that are flagrantly unconstitutional. On top of the lowered threshold for harassment, the removal of significant due process protections only diminishes the protections for accused students.

Yet this would not be the first time universities have witnessed such a period of glaring indifference to due process protections. Under the Obama administration’s previous Title IX guidelines, which treated sexual misconduct and harassment as forms of sex-based discrimination, university administrators routinely denied accused students a slew of procedural benchmarks - notice and adequate response times for collecting-and-sharing evidence, access to training materials used for Title IX administrators, a presumption of innocence in proceedings, the ability of the accused to cross-examine their accuser, with-or-without legal counsel, as well as an inability to appeal decisions (Polaner, 2022). In many cases adjudicated under the Obama-era guidelines, accused students were not only placed in situations where they were unable to understand the accusations against them, but were oftentimes left having to guess who their accuser(s) were, and rely on the accuracy of charges made by investigators who determined their level of guilt (Soave, 2022). It is no wonder then that during this period - which some have dubbed the “Dear Colleague” era - more than 600 lawsuits, many of which were successful, were filed against universities for conducting unfair disciplinary proceedings and for denying accused students basic elements of procedural fairness (FIRE, 2022). With the Biden administration choosing to eliminate important due process protections, in a manner similar to the Obama administration’s previous rules, we may, unfortunately, see a return to this pattern once again.

Just as the return to Obama-era guidelines has eroded hard-won due process protections, so too will the decisions by administrators under the new rules. As Brooklyn College history professor, KC Johnson has explained, “Title IX is supposed to ensure fairness for both parties in a campus sexual assault adjudication, and not solely the accuser…Unfortunately, however, as applied, Title IX too often has been used as a sword to erode principles of due process and prevent wrongly accused students from having a meaningful chance to defend themselves” (Bauer-Wolf, 2022). And despite the application of Title IX’s rules and regulations toward all accused students, it is unlikely that this will be the case. Under the Obama-era regulations, male students of color were oftentimes sanctioned and disciplined at disproportionately higher rates than their white student counterparts which, as Harvard law professors Janet Halley and Jeannie Suk have indicated, was primarily the result of procedural unfairness and due process violations associated with the former President’s Title IX proceedings (Sanzi, 2019). And so while Biden and administration officials, such as Cardona, praise their new rules for creating equality and fairness for accusers within adjudications, they do so at the expense of other parties, whose career and social prospects are spontaneously derailed upon a guilty verdict.

References

Bauer-Wolf, Jeremy. 2022. “Biden’s Draft Title IX Rule Would Allow the Single-Investigator Model. Should It?” Higher Ed Dive. July 5, 2022. https://www.highereddive.com/news/bidens-draft-title-ix-rule-would-allow-the-single-investigator-model-shou/626407/.

FIRE. 2022. “Proposed Title IX Regulations Would Roll Back Essential Free Speech, Due Process Protections for College Students.” The Foundation for Individual Rights and Expression. June 23, 2022. https://www.thefire.org/news/proposed-title-ix-regulations-would-roll-back-essential-free-speech-due-process-protections.

Moody, Josh. 2022. “New Title IX Rules Raise Concerns for the Accused.” Insidehighered.com. June 30, 2022. https://www.insidehighered.com/news/2022/06/30/new-title-ix-rules-raise-concerns-accused.

Office for Civil Rights, Department of Education. n.d. “Federal Register Notice of Proposed Rulemaking Title IX of the Education Amendments of 1972 Notice of Language Assistance.” Www2.ed.gov. https://www2.ed.gov/about/offices/list/ocr/docs/t9nprm.pdf.

Polaner, Mason. 2022. “A Note to President Biden: Do Not Eliminate Trump’s Title IX Changes.” Arcadia Political Review. January 5, 2022. http://www.wesleyanarcadia.com/recents/2022/1/5/a-note-to-president-biden-do-not-eliminate-trumps-title-ix-changes.

Soave, Robby. 2022a. “5 Ways Biden’s New Title IX Rules Will Eviscerate Due Process on Campus.” Reason Magazine. June 23, 2022. https://reason.com/2022/06/23/title-ix-rules-cardona-biden-sexual-misconduct-campus/.

2022b. “Title IX’s 50th Anniversary Is a Dark Day for Due Process on Campus.” Reason Magazine. June 23, 2022. https://reason.com/2022/06/23/title-ix-due-process-50th-anniversary-biden-campus/