Serious changes are coming to Chapter Nine
The Biden administration wants to force universities to change the way they handle allegations of sexual assault on campus. Unfortunately, the changes will deprive accused students of their basic rights.
We’ve been here before, during the Obama era. It didn’t work then, and it won’t work now.
Title IX of the Education Amendments of 1972 was issued nearly 50 years ago. Any educational institution that receives federal funds is prohibited from discriminating on the basis of sex.
In 2011, the Department of Education came up with a new interpretation of Title IX and published a “Dear Colleague” letter that provided “guidance” on how to adjudicate sexual assault charges on universities.
The guidance pressured schools to use the “predominance of evidence” standard of proof rather than the stronger “beyond a reasonable doubt” standard applied to sexual assault cases in our criminal justice system.
He told universities that in these cases, only one official should handle the cases, serving as an investigator, prosecutor, judge and jury at a time.
The letter advised schools as well, that since they were conducting an administrative rather than a criminal hearing, those accused of assault should not be able to question their accusers or allow them legal representation. In many universities, defendants were not even allowed to see the evidence against them.
Unsurprisingly, once court proceedings were stripped of integrity and impartiality, the number of unjustly accused and punished students rose. So did the number of lawsuits filed against universities that followed this directive.
A 2019 study found that in 2018, 78 such lawsuits were filed, compared to just seven in the 21 months immediately after our “dear colleague” speech. Most of the lawsuits filed from 2011 to 2019 were adjudicated in favor of the accused students.
In 2017, then-Secretary of Education Betsy DeVos repealed the 2011 guidelines and spent the next three years rewriting Title IX rules to implement fairer and more effective due process, with better options for defendants and stronger due process rights for defendants.
Now, however, the current administration appears ready to return the Obama-era kangaroo courts to the universities.
Last month, Catherine Lamon’s appointment was confirmed as the Assistant Secretary of Education for Civil Rights – the same position she filled in the Obama administration. It then aggressively enforced its 2011 guidelines, and appears ready to do so again. During her hearing, she testified that she did not believe that Title IX regulations include the presumption of innocence of the accused, which is a fundamental principle of our judicial system.
The chief is fine with that.
In the course of the campaign, he vowed to bring a “quick end” to DeVos rules. And in March 2021 he issued an executive order directing the Department of Education to “consider suspending, reviewing, or rescinding” DeVos’ rewriting.
Such a return would not only undermine due process rights on campus, but would also put victims of sexual assault at risk. Without a mandatory referral of sexual offenses to law enforcement, fraudsters who only receive an administrative punishment from the university would get out for free.
Sexual assault is a criminal act. Accusations of criminal acts should be investigated by law enforcement, not university officials who have had no legal or criminal justice training.
Those who oppose a return to the 2011 guidelines have been accused of being insensitive to victims of sexual assault and said they “want no action or consequences for the abusers”. These are straw arguments. What we want is a fair and efficient process that respects the rights of both the accused and the accused.
Just as freedom of expression must be protected no matter how loathsome that rhetoric may be, so everyone must be given full due process protection under the law, no matter how heinous the alleged offense may be. Without this protection, many innocent students would be accused and unjustly punished.
• John Shove is a research associate and project coordinator at the Heritage Foundation’s Center for Education Policy.