New Biden Title IX rules would use civil rights office … to strip civil rights from students

College students across America could soon be at risk of losing fundamental rights. And they have the Biden administration to thank for that.

A lot of attention has been paid to President Joe Biden’s efforts to broaden the definition of “sex” in Title IX to include gender identity and sexual orientation.

What hasn’t gotten as much scrutiny are other changes that could undermine due process and free speech on campus.

Biden last month released his new proposed rules to update Title IX, the 50-year-old federal law that bans sex discrimination in education, with the goal of erasing reforms that were put in place in 2020 by the Trump administration.

More: Would adding gender identity to Title IX be a game changer? Some say yes, and not in a good way.

The president wants to return to his Obama administration days, when as vice president he helped push universities to adopt sexual misconduct policies that stripped basic procedural rights and the presumption of innocence from campus investigations. This was purportedly done to protect victims of abuse, and while intentions may have been good, the outcome was blatantly unfair to accused students, often young men.

DeVos reforms offered fairness

Former Education Secretary Betsy DeVos sought a better framework during the Trump years and spent much of the term crafting a rule that balanced the concerns of all students involved. She did this through the formal rulemaking process – something the department under former President Barack Obama did not do – which means she had to post the changes and respond to more than 120,000 comments before they became final.

Because DeVos did it this way, Biden must also go through that process. The public 60 days to weigh in once the proposed rule is published in the Federal Register.

This all started with a 2011 Dear Colleague Letter from the Education Department’s Office for Civil Rights and was reinforced and broadened throughout the Obama years. No surprise that Catherine Lhamon, who served as head of the civil rights division during Obama’s second term, was Biden’s choice to again have that role.

For a taste of Lhamon’s views on extending due process to accused students, she tweeted in May 2020, when DeVos released her final Title IX reforms, that the Education secretary was “taking us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.”

That’s a ridiculous thing to say, and it’s not what the current rules, instituted under DeVos, allow.

I’ve talked with many legal experts over the years about this topic, and there is bipartisan support for colleges adhering to constitutional protections. The courts are also demanding it.

Accused students have rights, too

KC Johnson, a professor of history at Brooklyn College and the City University of New York's Graduate Center, has followed the matter closely and has tracked the hundreds of lawsuits from accused students against their universities since 2011. Many of them have won.

Federal courts have time and again stood for basic protections such as live hearings and cross-examination, which DeVos made sure to include in her rule.

Yet that’s precisely what Biden officials want to strip away.

More from Ingrid Jacques: GOP can become the ‘Parents’ Party.’ Arizona schools the country on how to do it.

Johnson said the proposed rules are full of ambiguity and seek to return to the Obama dictate, ignoring court decisions that clearly have come down on the side of due process rights.

“If you don’t tilt the process toward the complainant, (the Office for Civil Rights) can and will come down on you,” Johnson told me.

While the Biden rule pays lip service to preserving the presumption of innocence that DeVos prioritized, it essentially guts that provision by allowing schools to punish accused students during adjudication, even with suspension.

The changes would also weaken the requirement that colleges offer accused students a detailed written notice of the accusations against them, and they would make access to evidence more difficult for the accused to obtain.

A 'shocking' revocation of rights

Most alarming are the changes to the investigation and hearing process that’s in place now. The rule would allow colleges to return to the single-investigator model (one university administrator serving as the prosecutor, judge and jury) that turned the entire process over to the Title IX officer or an investigator hired by the office.

Schools could still allow live hearings and cross-examination if they chose, but unless they are under the jurisdiction of a federal court that has mandated it, chances are they won’t do it.

More: Biden administration proposes protections against sexual violence in schools

“It’s an almost surgically targeted approach attempting to minimize the rights of accused students from the start to the very end of the process,” Johnson said. “It’s shocking because in the civil rights area, you don’t usually think of the revocation of rights. They are taking rights away that millions of students currently have and have had the last two years.”

Free speech would also take a hit under the new rule by once again expanding the definition of harassment. Before DeVos’ narrowing of what constitutes sexual harassment, students and professors found themselves the subject of Title IX complaints for things they had simply said or written.

The wild back and forth when it comes to these rules is another reason why this matter needs to be settled by the U.S. Supreme Court – or better yet by Congress, which could provide parameters to the Title IX guidelines.

Otherwise, the next Republican administration is almost certain to roll back any Biden changes. Such fluctuation is bad for college administrators trying to follow the rules (and keep their federal funding), and it’s bad for students who have no certainty about what kind of campus they will be attending.

“Where an accused student has meaningful rights in 2022 but not in 2024 and again has them in 2026, it’s not a system that makes any sense,” Johnson said. “The life-altering impact of a wrongful finding of guilt will essentially depend solely on what year you happen to be going to college.”

If the Biden administration truly seeks a fair system, as it says it does, then this is the wrong way to go about it.

Ingrid Jacques is a columnist at USA TODAY. Contact her at ijacques@usatoday.com or on Twitter: @Ingrid_Jacques 

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This article originally appeared on USA TODAY: New Biden Title IX rule may erase students' due process rights