As the Biden administration's controversial Title IX rules go into effect Thursday, many due process protections afforded under the Trump era rules are being retracted and returning to what critics called the "kangaroo courts" of the Obama years.
President Joe Biden's rules have been blocked by federal judges across the country, pausing their implementation in numerous states and hundreds of schools, with more cases pending. But for far more states and schools, the rewritten rules go into effect Aug. 1, and how schools approach handling sexual assault allegations will be dramatically changed.
While most of the court cases and media coverage about Biden's Title IX rewrite has focused on how it changed the definition of sex to include claimed gender identities — thereby shuttering private spaces for girls and boys to use restrooms and locker rooms separately, for example — the new rules also strip away many major due process protections for alleged Title IX violations on college campuses and diminish the presumption of innocence for the accused.
"The Biden-Harris Title IX rule is a stunning reversal of the due process protections found in the 2020 DeVos rule. Their new regulatory regime does not serve students — not survivors of sexual assault, and not those accused of sexual misconduct," Bob Eitel, co-founder and president of Defense of Freedom Institute, told the Washington Examiner. "Survivors will be forced to re-live their experiences through repeated court challenges, and the accused will be left with little alternative but to seek redress in court from the Kangaroo-style Title IX campus investigations and disciplinary proceedings encouraged by the rule."
"Educational institutions should take measures now to increase their liability insurance coverage, because they’re going to need it," he added.
Eitel served in the Trump administration as senior counselor to Education Secretary Betsy DeVos when the original rules governing Title IX were written, with a distinct focus on ensuring the due process protections of accusers and the accused on college campuses. Prior to those rules, Title IX was governed by a hodgepodge of directives, primarily through a 2011 "Dear Colleague" letter which stacked Title IX adjudication heavily in favor of the accusers, without much regard for the accused even in cases where accusations were false.
The "Dear Colleague" letter created a confusing and unfair framework for both men and women, critics say. When DeVos announced her plans to create rules governing Title IX in 2017, she referenced multiple failures under the Obama-era system, which is largely reinstituted under Biden's overhaul.
For example, at Stony Brook University, a female sexual assault victim reported the incident to her school in 2013 and was told she would have to prosecute the case herself. "Without any legal training whatsoever, she had to prepare an opening statement, fix exhibits, and find witnesses," DeVos said in a speech.
In a 2017 case from the University of Southern California, a man's life was turned upside down by a neighbor claiming that he had sexually assaulted his girlfriend. Despite the consensual nature of what the couple described as "playfully roughhousing" and the girlfriend repeatedly telling the Title IX office that she had not been abused in any way, administrators overruled her, kicked her boyfriend off the football team, and expelled him from school.
"When I told the truth," the girlfriend said. "I was stereotyped and was told I must be a 'battered' woman, and that made me feel demeaned and absurdly profiled."
The upcoming Title IX rules are set to return campuses to the old system, which was rife with examples of mistreatment of the accused and accusers.
“Justice is only possible when hearings are fair for everyone,” Will Creeley, legal director for the Foundation for Individual Rights and Expression, said when the rules were initially finalized. “Today’s regulations mean one thing: America’s college students are less likely to receive justice if they find themselves in a Title IX proceeding.”
"When administrators investigate the most serious kinds of campus misconduct, colleges should use the time-tested tools that make finding the truth more likely," Creeley added. "But the new regulations no longer require them to do so."
Under the Biden framework, a student can be found guilty of sexual assault without ever being able to see the full scope of evidence against them. Instead, the accused student would only have to be provided with a description of what the university considers "relevant evidence," and the school can deliver that information orally as opposed to in writing.
During the adjudication process, or grievance procedure, conducted by the Title IX office, an accused student's guaranteed right to a live hearing, with the ability to cross-examine the accuser, has also been taken away.
While the Biden administration argues that the hearing and cross-examination could re-traumatize an alleged victim and dissuade others from coming forward with complaints, the ability to do so is a central component to resolving competing claims fairly, as the 6th U.S. Circuit Court of Appeals ruled in 2018.
The new Title IX rules also return the investigation process to what is known as the "single investigator" model, which allows only one Title IX officer to both investigate and decide the outcome of the case — or, critics say, act as judge and jury. Under the Trump-era rules, at least three people — a coordinator who receives reports of misconduct, an investigator, and a decision-maker — were required for each investigation.
The Biden administration defended returning to the single-investigator model by noting that "requiring separate staff members to handle investigation and adjudication is burdensome for some recipients."
Opponents of the due process change say concerns about fairness should outweigh concerns about administrative resources.
"Considering how vital a neutral and fair final decision-maker is to the fairness of the process, the accuracy of the fact-finding, and the integrity and robustness of the final decision, any additional administrative inconvenience and cost are more than justified (and are likely to save money and headaches down the road)," Perkins Coie attorneys T. Markus Funk and Jean-Jacques Cabou pointed out .
The evidentiary standard for misconduct has also been lowered by the Biden administration, making it much easier for the accused to be found guilty of wrongdoing. Under the Trump rules, a standard known as "clear and convincing" was used, meaning the evidence would have to be strong enough to remove any serious doubts about the legitimacy of the allegations. Under the Biden administration's "preponderance of the evidence" standard, the evidence must present as more likely than not that the allegation occurred — sometimes compared to an above 50% chance. The only way a school can now use the clear and convincing standard in a Title IX investigation is if they use it in most other comparable proceedings.
Despite the 2020 rules requiring the same high burden of proof for everyone, the Biden rules actually require a greater burden of proof when the accused is an employee than when the accused is a student, making it harder for faculty members to be found guilty of wrongdoing, but easier for students.
As Eitel alluded to, litigation is likely to come from the diminished due process standards under the Biden framework. Some lawsuits have already mentioned the due process issues.
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Only days after the Biden administration finalized the ruling, a number of plaintiffs, including Alabama, Florida, Georgia, and South Carolina, filed a challenge arguing, "The elimination of a parties’ right to a live hearing with cross-examination, even when credibility is a key issue, is arbitrary and capricious. The challenged rule states that college students accused of misconduct — charges that could ruin their academic and professional careers if they are found guilty — no longer have a right to be accompanied by counsel at all proceedings. … The Department has not reasonably considered these concerns."
The Biden administration did not "adequately consider the significant due-process concerns of a single-investigator model, let alone how its interests militate the grave dangers of allowing a single person [to] investigate, prosecute, and convict," the lawsuit stated.
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