Biden promised it would happen, and if there was any doubt he would keep his campaign promise, appointing Catherine Lhamon as chief of the Office of Civil Rights at the Department of Education left little doubt that he meant it. For Lhamon, it was a matter of religious zealotry. This was what she lived for. The changes to Title IX rules by Betsy De Vos, requiring at least minimal due process in campus sex tribunals, are gone. The new rules are finally here, and they’re about as bad as everyone expected.
With the release of new Title IX regulations today, the Department of Education encourages institutions of higher education to violate students’ free speech rights and to eliminate essential due process protections for students accused of sexual misconduct.
“Justice is only possible when hearings are fair for everyone,” said FIRE Legal Director Will Creeley in a statement. “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.”
Will Creeley is being polite. This isn’t really about America’s college students. The is about male college students and female college students, the former being perps and the latter being victims. It’s an old tale institutionalized in the new institution.
So what are the changes? I haven’t read the new rules. I can’t. I’ve read the ones from 2011 and the changes by De Vos, and I can’t bear to read through them again. No doubt I’ll become familiar as I wade through the cases and court decisions that will follow, but for the moment, I’m willing to accept FIRE’s explanation.
Today’s regulations undermine the basic elements of due process in Title IX proceedings, including:
- eliminate the right to a live hearing to contest the allegations;
- eliminate the right to cross-examine one’s accuser and witnesses;
- weaken the right to be represented by lawyers in campus sexual misconduct expulsion proceedings; and
- allows for the return of the “single-investigator” model, in which a single administrator serves as prosecutor, judge, and jury.
In addition to eroding the fundamental fairness of campus proceedings, the new regulations also threaten student free speech rights. The regulations replace the 2020 regulations’ definition of student-on-student harassment with a more expansive, less speech-protective definition that departs from Supreme Court precedent.
In other words, years of litigation, of more than 250 federal courts issuing opinions about the impropriety of railroading of the accused on campus in the name of protecting the virtue of frail womanhood, have been ignored because Catherine Lhamon believes herself and her cause above the law, above due process, above the Constitution.
It’s not that the wrongfully convicted (the technical term on campus is “found responsible,” but it’s every bit a conviction save the sanction of imprisonment) won’t be able to take their expulsions and suspensions to federal court for scrutiny, but that it’s not a sufficient remedy for the damage Lhamon seeks to inflict.
First, it’s expensive to sue a university. Second, it takes years, all the while the male student is ousted from college. Not only does he lose years of his life, but if he is an athlete, the chance to go pro. If he’s seeking to join the military, that’s not happening. If he wants to go to med school, he can kiss that good-bye. And if he just wants to join the workforce as a college graduate, he can’t. After all, he was expelled.
Mostly, his reputation is tainted as a campus sex offender, a pariah. His transcript contains the notation that he was expelled for committing sexual misconduct, and no other school will have him. His friends now shun him. And the hopes and dreams he worked for all those years leading up to matriculation are dead.
But what if he’s guilty? Then prove it in a proceeding that provides the most basic opportunity for an accused to defend himself. Provide real notice of the accusations. Provide the evidence against him. Hold a real hearing with real people where he can challenge the accusation. Let him have counsel, and let counsel question the accuser. It’s easy to tell a story when it goes unchallenged, even if the story changes over and over, which is an indication of guilt under the litany of “survivor” excuses. Then again, everything is an indication of guilt under the litany of “survivor” excuses.
And mostly, let the decision be made by an impartial fact finder. Even with the De Vos rules, which required that the fact finders be impartial, there was never really a chance that the decision makers weren’t so wholly biased in favor of women and against men that the male student stood a real chance. But that’s better than no chance at all, and that’s the process Catherine Lhamon wants and the process her new rules put into place.
It’s hard to imagine anyone hating the Constitution as much as Lhamon, but then, that’s the price of making sure every accused male is found responsible. Stripping due process from campus sex tribunals turns the proceedings into a joke. But this is no joke for Lhamon, who wants to make sure that no male student walks and every accusation by a female student is vindicated. And it’s no joke to the innocent young men whose lives are ruined.
“Please be responsible while you’re away at college, Junior. If you plan to have sex, always be sure to have a drink first. Then if your hookup starts sending you weird text messages, play it safe: launch your own accusation and join the woman’s swim team.”
Since the 2011 Dear Colleague guidelines never went through regulatory procedure and since the comment period for these ones was prematurely curtailed, surely it can be argued that they have no standing? Title IX is discrimination on the basis of “sex”, not “gender”. DOE OCR can’t just arbitrarily change the Civil Rights Act to suit itself and not the people.
To the extent that this “standing” you speak of would even matter, it would only be of concern to the colleges and universities who are now subject to these new and flagrantly unConstitutional guidelines. Of course, these are the same colleges and universities who eagerly implemented these policies of their own accord over a decade ago, defended them vigorously across hundreds of losing lawsuits, and loudly lamented when DeVos made them change course.
These regulations merely allow colleges to happily reopen their Star Chambers without fear of losing the inevitable lawsuits that will result from doing so at the summary judgement phase. They are intended to provide the institutions legal cover for doing what courts across the nation have unequivocally said is not allowed. They will only serve to force young men to litigate anew existing, unambiguous legal precedent, only to arrive at the exact same conclusion: these policies are roundly unConstitutional.
Innocence Matters
I agree the new rules are an abomination and not only undermine but really abandon any shred of fairness and due process, and are a return to the bad old days of “Dear Colleague” intimidation. But I must take issue with the broad brush criticism of the DeVoss rules that “there was never really a chance that the decision makers weren’t so wholly biased in favor of women and against men that the male student stood a real chance.” For several years I have been associated as an independent contractor with a firm of retired attorneys and judges that was retained by Title IX Offices for several colleges nationwide to independently investigate Title IX complaints, or serve as hearing officers, or even adjudicate appeals, and I have acted in all three roles for separate clients. Neither I nor my colleagues had any bias either for or against any party, we took our independence and neutrality seriously and strived to be fair to all parties because that’s how we had been trained and how we had practiced law. We found respondents responsible or not responsible based on the evidence, not a preconcieved “Believe the Women” mentality that we reject based on our decades of experience in courtrooms across the country. I do not know how many Title IX Offices employed firms like ours, but we were not alone.
All that said, with the new rules allowing the “single investigator” model, we think our business of offering independent investigators, hearing officers, or appeals officers, that provides a layer of insulation from lawsuits alleging kangaroo court bias may well suffer/fail due to the simple fact that we cost money that can now be saved by using only in-house trained Title IX personnel. Only time will tell, but I think the money factor will carry the day more often than not, as it clearly did as a result of the Dear Colleague approach.
They’re biased. I’m not biased. Says everyone who’s biased.
I have no doubt that you and your colleagues approach your job responsibilities with every intention to be fair and impartial towards the accused. And, surely, the folks the university hires internally under these new regulations likely will see themselves as doing the same. Then again, I suspect the administrators the universities employed prior to using your firm’s services felt they were doing the same, even while convicting young men of heinous accusations who, at times, had no idea what the allegations actually were.
Yet, you bring up an interesting point: that the universities will likely cease using your firm to enjoy a lower cost alternative of hiring their own staff to manage these investigations. Interestingly, this entire time, there has existed an option these institutions could have used to adjudicate allegations of criminal wrongdoing that would do so at absolutely no cost to the university. It would have relieved them of any liability whatsoever should there be mistakes. Our country has been working on perfecting it for over 200 years now, actually. It has safeguards for the accused, and also aims to be fair and impartial, while taking accusers claims seriously. It’s called the criminal justice system. And yet, colleges and universities have not availed themselves of the lowest cost option possibly available. Why do you suppose they chose your firm instead?
Bryan, you ask a legitimate question, but it assumes all Title IX complaints allege criminal wrongdoing. Some do, and some don’t. Even the DeVoss rules included a broad scope of prohibited conduct to include sexual harassment, hostile environment, retaliation, gender-based harassment, discrimination, to name a few off the top of my head. Moreover, the rules establish the standard of proof as a preponderance of the evidence, a standard not used in the criminal justice system. For example, my most recent matter involved a complaint filed at the Title IX Office by an openly gay female student who alleged that during an online Google chat group a fellow student said that while her religion taught that being gay was a sin, she did not hate gays. This, according to the complainant, made her feel unsafe if she had to be on a field trip with the respondent. The Title IX Coordinator admitted privately that this was not a Title IX matter, but she nevertheless had to follow the college’s Title IX written policy to have the complaint investigated and adjudicated. Between the Title IX regs, the Dear Colleague letter, and Title IX Coodinators and institutions’ lawyers writing policies, we now have a universe of potential non-criminal complaints for our fragile students to allege, and they do not hesitate to file them. Hope this helps.
There is a simple solution for schools wishing to avoid the latest edict. Don’t accept federal money. The only enforcement mechanism for this is the withholding of federal funds.
I miss Betsy. Good woman there
It never ceases to amaze me that people are willing to work in these Title IX offices, implementing what they have to know are unfair practices and procedures. So much for integrity.