On the one hand, it’s ironic that the guy who was given the opportunity to beat back the Tara Reade accusations would deny that opportunity to male students, who are powerless in the face of their University Title IX Administrators’ cavalier callousness. There’s also the sexual harassment accusations against Andy Cuomo, but nobody likes him today anyway, so the hypocrisy of his defending himself can be dismissed. Hey, intellectual consistency is the hobgoblin of unwoke minds. If only nonsensical excuses could be monetized, the woke would be RICH!!!

But on the other other, this comes as no surprise. Biden said he would undo the minimal due process protections imposed by the DeVos Department of Education rules as a candidate, so his announcing his plan to do so as president is exactly what was expected. The order contains all the benign words expected in an Executive Order, to “go good things and stop bad things.” And that’s all Joe has to say about it for now.

It is unclear whether Mr. Biden’s review of all policies under Title IX, a 1972 law that prohibits sex-based discrimination in federally funded schools, will return the rules to the Obama administration’s approach or find some middle ground that incorporates lessons from the last two administrations. When asked what direction Mr. Biden might take, a White House official said on Monday that the executive order “speaks for itself.”

The “Dear Colleague Letter,” the reinvention of campus sex calculated to make woman accusers untouchable and males not merely presumptively guilty, but conclusively guilty, was imposed by bureaucratic fiat. Russlyn Ali and Catherine Lhamon, now serving inside the Biden White House, came up with this scheme and rammed it down colleges’ throats. And they swallowed.

DeVos, love her or hate her, went through the arduous task of complying with the Administrative Procedures Act to create actual regulations, which became effective August, 2020. There were two questions at the time: will colleges comply with the new regs, as they were deeply unpopular with female college consumers, and will the new rules survive?

That Joe Biden has called for a “review” of the rules is no surprise. He said he would. But can he?

“It’s not to say that they couldn’t loosen some of the Trump-era rules,” R. Shep Melnick, a politics professor at Boston College and the author of “The Transformation of Title IX: Regulating Gender Equality in Education,” said in an interview. “But if they try to go back to the Obama-era rules, I’m pretty sure that they would lose in court.”

The hysterical rhetoric against the DeVos rules notwithstanding, there is no going back to the good old days when women accused men of sexual misconduct and the men magically got expelled, no one ever questioning whether it was misconduct at all or happened. After all, what sort of rape apologist didn’t believe women, who were never wrong and never lied?

But beyond the new rules, there are a wealth of federal and state court decisions holding that these campus sex tribunals were grossly unconstitutional, from their use of the trauma-informed single investigator model to the denial of a live hearing where an accused could defend himself, to cross-examining the accuser to the presumption of guilt. Yes, one of the controversies of the new Title IX rules was that it established the presumption of innocence for the accused. Can you imagine how hurtful that was to “survivors”?

The Biden Department of Education can try its best to return to the good old days where no one could challenge a complaining woman, but those court decisions aren’t going to go away so easily. Then again, the argument may be that if the DoE issues new guidance, or even goes through the trouble of crafting lawful new rules, the courts will defer to its expertise under Auer and validate the process of railroading male students that’s now frowned upon.

Or colleges could just do as they please, or more to the point, show their female students how deeply they care about them by expelling male students on demand, and take the hit when they lose in federal courts in the future. The cost-benefit analysis may end up causing colleges to prefer to lose in court rather than appear not to care enough about “survivors.”

It won’t be easy or simple to do away with the DeVos rules, and there is nothing to suggest that the court holdings that the DCL procedures were in flagrant violation of the constitutional due process rights of the accused will be reversed any time soon. But then, that’s not the end of the story. It never really was.

This was always a battle over process. It was, in many ways, a silly battle as universities were pushed into becoming ground zero for the sex wars. The law never required colleges to police their students’ sex lives. The Supreme Court didn’t say so. It was Ali and Lhamon that created this quasi-legal, sub-constitutional process so that women had a place to grieve other than court when one of the parties was a college student. This way, sexual harassment and violence became whatever colleges said they were, and colleges said they were whatever women felt they were, before, during or after the fact. And once it was felt, it couldn’t be questioned. It was a good deal for accusers.

But the DeVos rules are rules of process. Getting the opportunity to proffer a defense, to question one’s accuser, to challenge the accusation before being expelled, is one critical step in due process. But it’s not enough. If the decision-makers are prejudiced against you, the process doesn’t really matter all that much. Even the most effective cross-examination won’t alter the outcome of campus judges who are going to convict you and expel you no matter what you say.

This aspect of the problem remains unfixed and unaddressed. DeVos’ rules say you’re entitled to an impartial judge, but those words don’t make it so. As long as the mindset on campus hasn’t changed, the procedures are just for show anyway. Will Biden’s rules change things? To answer that question, one must first think that better process under DeVos meant a more fair outcome in the minds of campus judges. The process changed. Did they?