What is the best way to determine whether a person engage in sexual harassment or sexual assault at a university? What procedural safeguard should we offer, given the fact that being expelled from college could destroy a person’s career?

The National Review Compares the current rules (enacted by Trump’s secretary of education Betsy DeVos) to the rules being proposed by Joe Biden. The article is titled, “Guilty until Proven Innocent: Biden Title IX Changes Mean Return to ‘Dark Ages’ for Falsely Accused Students.”

While the woman who’d accused him of rape appeared before a Columbia University panel in June 2017, Ben Feibleman was in another room watching it on Zoom.

Feibleman was not allowed to cross-examine his accuser during the hearing to determine if he would be expelled from the school, potentially scarring his personal and professional life permanently. He wasn’t even allowed to be in the same room with her.

During the hearing, Feibleman was also barred from discussing a medical report that found his accuser was likely not impaired or unable to consent to sexual activity the night of the alleged assault. He was barred from discussing his accuser’s behavior that he said eventually caused her friends to doubt her. If Feibleman mentioned any of it, he’d be removed from the hearing.

Feibleman’s written statement to the three-member hearing panel was heavily redacted, according to court records. The panel took no testimony. Members refused to ask questions of Feibleman or his accuser that Feibleman had repeatedly begged them to ask about evidence he’d submitted in his favor — hundreds of photos, videos, and a damning audio recording.

And then the panel found Feibleman guilty. He was expelled and denied his diploma.

“Nobody had any interest in my version of events,” Feibleman told National Review.

Feibleman’s experience with a less-than-fair quasi-judicial university hearing was not unique in the years after the Obama administration issued Title IX guidance documents directing the nation’s colleges and universities to crack down on sexual harassment and sexual violence cases on and off campus. The Obama-era guidance essentially tipped the scales in the direction of the accusers, typically women, with millions of dollars of federal funding for schools on the line.

Schools were directed to use a preponderance-of-evidence standard — the lowest standard of proof — in sexual-assault cases under Title IX, which generally bars sex-based discrimination. They were discouraged from allowing the parties to cross-examine one another, on the assumption that it could be “traumatic or intimidating” for an alleged victim. Accused students had no right to a live hearing, or to even see the evidence against them. Schools were allowed to use single-investigator models in Title IX cases, in which one person assumes the role of investigator, prosecutor, judge, and jury.

The Title IX procedural rules enacted under Betsy DeVos are a huge improvement to the rules in effect when Ben Feibelman was expelled by Columbia University. FIRE, recently renamed the Foundation for Individual Rights and Expression, pointed out the many due process safeguards offered by the DeVos rules:

The Department of Education published proposed regulations to replace the rescinded documents in the Federal Register on November 29, 2018, formally inviting the public to comment on them as required under the APA. On May 6, 2020, the Department finalized these regulations largely as proposed, including several provisions guaranteeing respondents important procedural safeguards.

What the new Title IX regulations say
The regulations include many requirements that will improve the fundamental fairness and reliability of campus Title IX procedures to the benefit of all. For example, they require institutions to provide students accused of sexual misconduct live hearings with cross-examination conducted by an advisor of choice, who may be an attorney; sufficient time and information to prepare for interviews and a hearing; and a presumption of innocence. The regulations also restore institutions’ ability to use the “clear and convincing” standard of evidence. Finally, the regulations define “sexual harassment” as it was defined by the Supreme Court of the United States in Davis v. Monroe County Board of Education (1999). This definition provides a clear path for institutions to respond to allegations of misconduct while also protecting students’ expressive rights.

Among the procedural protections guaranteed by the new regulations are:

• An express presumption of innocence;
• live hearings with cross-examination conducted by an advisor of choice, who may be an attorney;
• sufficient time and information — including access to evidence — to prepare for interviews and a hearing;
  impartial investigators and decision-makers; and
• a requirement that all relevant evidence receive an objective evaluation.
• The regulations also affirm institutions’ ability to use the “clear and convincing” standard of evidence, which the government previously forced schools to abandon in 2011 for the lower “preponderance” standard in sexual misconduct cases.

Finally, the regulations define “sexual harassment” as it was defined by the Supreme Court of the United States in Davis v. Monroe County Board of Education (1999). This definition provides a clear path for institutions to respond to allegations of misconduct while also protecting students’ expressive rights.

The Biden Administration is now attempting to roll back the DeVos due process protections. FIRE opposes the Biden proposed changes to Title IX:

The draft regulations are a significant departure from current Title IX regulations. Unlike the current regulations, adopted in 2020 after 18 months of review, the new regulations would roll back student rights by:

• eliminating students’ right to a live hearing;
• eliminating the right to cross-examination;
• weakening students’ right to active legal representation;
  allowing a single campus bureaucrat to serve as judge and jury;
• rejecting the Supreme Court’s definition of sexual harassment in favor of a definition that threatens free speech rights;
• requiring colleges and universities to use the weak “preponderance of the evidence” standard to determine guilt, unless they use a higher standard for other alleged misconduct.
• These changes authorize or require institutions to violate fundamental student and faculty civil liberties.