As expected, the 50th Anniversary of Title IX wasn’t merely a day to remember when women got to play sports and men’s teams were eliminated because there weren’t enough women interested to align the numbers. It was the day Joe Biden’s renominated head of the Department of Education’s Office of Civil Rights would have her last hurrah. As expected, Catherine Lhamon introduced her new rules designed to undo the regulations instituted by Betsy DeVos to provide minimal due process to the nightmare of campus sex inquisitions.
You see, Lhamon has dedicated her public service to the nightmare of campus sex inquisitions.
When Lhamon was able to impose her idiosyncratic view of how to protect women by destroying accused men when she served in the Obama administration, it was easily done with a letter and Q&A that passed no muster except the one inside her head. She was the law, as she informed a senator, and she could ram what she wanted down the throats of every school in America. And she did. Stop her, Senate. It didn’t.
But federal courts did, as expelled students brought suit and court upon court, even the ones who bought into the campus argument that it wasn’t “sex” discrimination since it wasn’t the colleges’ fault that men always seemed to be the rapist, ruled in their favor. Schools just favored “survivors” over rapists, not women over men. Lhamon smiled, as the courts simultaneously found that her rules “railroaded” innocent boys at the mere accusation, the almost laughable lies of some accusers.
And after a bit, courts came to realize that they had been scammed by colleges, putting forth the scheme to which Lhamon dedicated her life and career. Piece by piece, they tore down her scheme as an unconstitutional denial of due process, from the denial of real notice of charges, the ability to actually know the evidence against the accused, a live hearing to both defend and present the case, competent representation, and, of course, cross-examination. So Lhamon’s new rules rids colleges of this meddlesome due process.
It’s unclear exactly what the ultimate rules will be, after the vast array of women allies submitting insipid arguments about their safety and how they desperately need a savior like Lhamon to protect them from mean, evil men who don’t expect them to change their mind a year or two after sex when they break up and guy finds a new girlfriend, and the old one, the “survivor,” feels scorned, What is abundantly clear is that they will undo the minimal protections afforded under the DeVos regs and ignore the law with abandon.
Still, the proposal “has flaws that sets it up on a collision course with the courts,” said Joe Cohn, the legislative and policy director at the Foundation for Individual Rights and Expression, a nonpartisan civil liberties group.
Mr. Cohn said that the administration’s backtracking on live hearings and cross-examinations, as well as its deviation from the Supreme Court definition of sexual harassment used by Ms. DeVos, ignore free speech and due process rulings that have already found such measures essential to Title IX case deliberations. The rule also reinstates a “single investigator” model that courts have found problematic, he said, under which one person acts as judge and jury.
“This rule acts as if that body of case law does not exist,” Mr. Cohn said. “They need to make significant revisions if they want the regulation to survive.”
Robby Soave runs through some of the major objections, which go beyond the deliberate deprivation of basic due process to include the flagrant infringement of free speech as well.
Cardona would define unwelcome conduct harassment as “conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate” in their education. This would open the door to Title IX investigations of speech that is sexual in nature and subjectively offensive to another person, without it needing to be severe and pervasive. The free speech implications are significant; legitimate classroom speech that was subjectively offensive and occurred repeatedly could now become a matter for the campus Title IX cop.
Beyond this, the new rules would affirmatively require the use of students’ preferred pronouns upon pain of sexual harassment by explicitly expanding the authority of Title IX to cover gender orientation as part of sex.
“It is the Department of Education’s responsibility to ensure all our students can learn, grow and thrive in school no matter where they live, who they are, whom they love, or how they identify,” Education Secretary Miguel A. Cardona told reporters on Thursday morning.
Over the past decade, bureaucrats have seized the opportunity to “reinvent” the social dynamic between boys and girls on campus by turning women into “survivors” and any accusation into their irrefutable “truth,” no matter what. While the new regs under DeVos were imperfect, they at least provided some opportunity for the accused to defend himself. Neither Biden (ironically), Cardona nor Lhamon can tolerate the accused being afforded the opportunity to challenge the accusation and perhaps prevent the ruin of his life and future.
Others can be less hyperbolic about this, can parse the details as I will eventually do once the rules are finalized, calmly explaining why the denial of due process, free speech and subjugation of a significant portion of society to the radical whims of Catherine Lhamon is improper. What’s so wrong about due process? The accused might not be found responsible and expelled because he’s innocent. That outcome is unacceptable. If he’s accused, he’s guilty and her word is sacred and unchallengeable. That’s all this is about. That’s all this ever was about.