Title IX changes could threaten rights of the accused

The Biden administration released new Title IX regulations last week after multiple delays. Some experts warn that the new rules violate the rights of students who are accused of sexual misconduct.

Congress first passed Title IX in 1972 to protect students in all levels of education from sex-based discrimination. The 1,577-page Title IX regulations released last Friday make significant changes, including redefining “sex” to include gender identity, and free speech advocates say the new version eliminates essential due process rights.

Colleges’ due process policies should safeguard basic, protective rights that ensure fair procedures for students accused of wrongdoing, said Ryan Ansloan, senior program officer at the Foundation for Individual Rights and Expression (FIRE).

The new regulations eliminate the rights to a live hearing and to cross-examine one’s accuser and witnesses and severely limit the right to be represented by lawyers in campus sexual misconduct expulsion proceedings. These changes could stifle students’ voices and limit fairness in cases, he said.

But the most concerning change, Ansloan said, is the return to the “single-investigator” model, in which one administrator serves as prosecutor, judge, and jury. This model could enable someone to make prejudiced and biased decisions against an accused student without any accountability.

“[The Department of Education] thinks that they are trying to provide schools with flexibility in applying these processes,” Ansloan said. “But I don’t think … that you can sacrifice students’ due process rights on the altar of convenience.”

Friday’s changes largely roll back the regulations implemented in 2020 by Betsy DeVos, secretary of education during former President Donald Trump’s administration. Under DeVos, colleges investigating sexual assault claims were required to separate the tasks of investigating the accusation and deciding the outcome of the complaint. Schools were also urged to allow for cross-examination of both parties while prohibiting schools from allowing the accuser and accused to question each other directly.

These changes responded to the higher number of allegations brought on by the #MeToo movement. Some legal experts worried that the movement overly favored complaints and potentially led to innocent students being punished over untrue accusations.

In a 2018 opinion piece for The Washington Post, DeVos argued that her updates to Title IX treated both parties with dignity and ensured the “integrity of final decisions.”

“Some may mischaracterize our proposals as tilting the scales of justice, but we believe they simply balance them,” DeVos wrote. “Our proposed framework supports survivors while safeguarding due process, helping make Title IX protections against sex discrimination a reality for all students.”

Prior to the Devos rule, the Obama administration implemented a Dear Colleague Letter that mandated campus sexual assault tribunals. Last week’s version marks the third major change to Title IX regulations in as many presidents.

The Biden administration’s regulations feel they are continuing a game of “political pingpong” that plays with student rights and goes against Supreme Court precedent, Ansloan said. In the 1975 case Goss v. Lopez in 1975, the court held that “[a]t the very minimum … students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing.”

Ansloan added that last week’s rule directly contradicts rulings from more than 250 court cases that have dealt with due process rights in the last decade.

“The newest regulations stand at odds with those court decisions,” he said. “[They] withdraw the protections that a lot of courts looked at and said are essential to guarantee that students, both complaints and respondents, have due process protections.”

FIRE recommends that states adopt its model campus due process bill, which implements the protections the new regulations have removed. Utah, Kentucky, and Louisiana have enacted a version of FIRE’s bill.

Others have expressed similar concerns as FIRE regarding the new regulations.

Richard Burr, a former Republican senator from North Carolina, said that the due process rights take a step backward and undermine the judicial system.

“This attempted overreach is not only extremely concerning, but runs counter to federal court precedent and the opinions of leading legal experts, including the late Justice [Ruth Bader] Ginsburg,” Burr said in a news release that was published after the Biden administration proposed a draft of the regulations. “With this proposed regulatory change, it’s clear the administration is placing accusations of guilt above fair consideration of the evidence.”

However, some victims rights groups praise the changes.

“Students who experience sexual violence or discrimination shouldn’t have to weigh our safety against our ability to go to class or participate in campus life,” Emily Bach, a student organizer for Know Your IX, a campus sexual assault awareness group, said in an April 19 press release. “The Biden administration’s updated Title IX rule will make sure that students who experience harm can come forward and seek support without jeopardizing our ability to graduate on time or get a degree.”

The rules go into effect on Aug. 1 and are unlikely to be changed before then, Ansloan said. However, he anticipates that litigation will soon follow and legal cases will challenge their implementation.

“The Department of Education hopes that this is the end of the conversation, but I don’t think that will necessarily be the case,” Ansloan said. “They are failing to provide students with their due process rights.”