In new Title IX rules, Biden must not kick due process and free speech to the curb

College students beware: You may soon find yourselves without basic constitutional protections if you’re accused of harassment or assault.

That’s because the Biden administration’s Education Department is busily working on a new Title IX rule governing sexual assault allegations on campus. The intention is to protect victims of sexual misconduct, but the result could be unfair treatment of accused students – often young men.

Title IX is the federal civil rights law that bans discrimination based on sex at educational institutions receiving federal money, and its reach has greatly expanded in the past five decades.

When President Joe Biden took office, one of his first orders of business was to unravel the regulations that former Education Secretary Betsy DeVos had implemented in 2020. DeVos went through an intensive rule-making process to revise the guidelines around these campus tribunals. This followed years of mounting lawsuits and court rulings that found these investigations unfair for the accused.

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Biden bids so long to DeVos' reforms

DeVos sought a framework that balanced the rights of all students involved, while maintaining essential due process and free speech provisions.

Yet, Biden took these changes as a personal affront, as he had led efforts while vice president in the Obama administration to force schools into tilting these campus courts in the favor of accusers through a series of letters that carried with them the threat of withheld funds if schools didn’t comply.

Since DeVos and her team took the time to craft a formal rule, the Biden administration must do the same. It released its proposed changes in June, and the public had two months to comment on them.

The rule received a whopping 240,000 comments – twice the number that DeVos’ Title IX rule garnered. So the Education Department is now sorting through the feedback and responding accordingly.

They are several months into the process, and the administration is expected to have the new rule in place this spring – or at the latest, next fall.

Two of the most important changes under the Trump administration centered on protecting students’ basic rights. They called for some sort of live hearing to take place, as well as cross-examination, and banned the use of “single investigators,” which put the investigation and judgment into the hands of one person – a model many universities used.

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'We're allowed to say rude things'

Another change aligned the definition of sexual harassment to one the U.S. Supreme Court used as a standard. The prior definition was so broad that it had gotten faculty and students in trouble for simply saying – or writing – the “wrong” thing, a direct attack on the freedom of speech.

As an example, in 2015, several offended students brought a Title IX complaint against Northwestern University professor Laura Kipnis, who was investigated after writing a piece advocating for less strict rules governing professor-student relationships.

Joe Cohn, legislative and policy director for the Foundation for Individual Rights and Expression (FIRE), says once again loosening the harassment definition would be one of the more egregious changes.

“The truth of the matter is we're allowed to say rude things, and there's no shortage of opinions that someone may find offensive on the topic of sexuality,” Cohn told me.

An end to the presumption of innocence?

I find it especially troubling that a group of 19 Democratic senators – led by Washington Sen. Patty Murray, chair of the Health, Education, Labor and Pensions Committee – submitted a comment fully supporting the erosion of these basic rights.

U.S. senators of all people should understand constitutional protections.

But they want the administration to go even further by doing away with the pesky presumption of innocence – a bedrock of any fair legal or disciplinary proceeding:

“We ask the Department to remove the presumption that the respondent is not responsible for sex discrimination until a determination is made. This presumption is not required in any other type of school proceeding and perpetuates the harmful and false stereotypes that those who report sex-based harassment are being untruthful.”

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That should terrify any student who could find himself – or herself – the target of an accusation.

Thankfully, other commenters warned against this erosion of rights.

Don't return to 'kangaroo courts'

“The Administration’s proposed Title IX regulations would undo the substantial progress achieved by the 2020 regulations,” according to the comment from a group of concerned attorneys and due process advocates, including KC Johnson, a professor of history at Brooklyn College and the City University of New York's Graduate Center. “They also fly in the face of hundreds of court decisions that, time and again, have told colleges and universities that they must treat students fairly – that the era of kangaroo courts is over.”

The Biden team doesn't seem deterred, despite the slew of court rulings (including appeals courts) that have stood firmly on the side of maintaining due process in these proceedings.

Similarly, FIRE, which advocated for the 2020 reforms, submitted an in-depth comment, observing: “Many aspects of the proposed regulations threaten to significantly roll back essential free speech and due process protections central to the current regulations. These changes are accordingly unconstitutional.”

These groups aren't too hopeful that Biden and his Title IX team will make any meaningful adjustments in response to these concerns. But they should.

I’ll leave you with the thoughts of Lara Bazelon, a self-proclaimed feminist and Democrat, who teaches at the University of San Francisco School of Law.

In 2018, she penned a piece for The New York Times, expressing her support for DeVos’ reforms: “We cannot allow our political divisions to blind us to the fact that we are taking away students’ ability to get an education without a semblance of due process.

“What kind of lesson is that?”

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 Title IX rule could wipe out students' presumption of innocence