I did not vote for Trump and I find him generally deplorable. However, the new Title IX college sexual harassment rules implemented by Trump and Betsy DeVos are well supported by the case law and are an enormous improvement over the version of the rules implemented by Obama.
What could possibly go wrong under the Obama version of the rules? Listen to this horrific miscarriage of justice described by attorney Lara Bazelon, speaking with Glenn Loury.
The proposed new Title IX rules by Joe Biden will be a catastrophically bad miscarriage of justice. FIRE (The Foundation for Individual Rights and Expression) points out the many problems with Biden’s proposed rules:
Rejecting the definition of student-on-student harassment set by the Supreme Court in Davis v. Monroe County Board of Education.
Requiring institutions to police speech and sexuality worldwide, not just in programs and activities on and around campus.
Requiring institutions to issue gag orders on the parties and their advocates that prevent them from disclosing “information and evidence obtained solely through the sex-based harassment grievance procedures,” meaning institutions of higher education are now required to enforce prior restraint and content-based restrictions on students’ speech or the speech of those advocating on their behalf.
Revoking the current requirement that accused students must be offered an opportunity to have a live hearing to contest the allegations against them.
Eliminating the right to a live hearing to contest claims, and thus also eliminating the right to cross-examination.
Allowing a single investigator to both investigate and adjudicate complaints, dramatically increasing the odds that one person’s bias, subconscious or otherwise, permeates the process. Such a system increases the likelihood of error, thus increasing the likelihood that accused students will be unfairly deprived of their access to educational opportunities or benefits.
If finalized, these and many other proposed provisions will mark a new, and unfortunately familiar, era of Title IX hearings in which institutions of higher education fail to protect the First Amendment and due process rights of students and faculty, likely resulting in costly litigation for institutions to ensure these basic protections are met.
