What Biden’s Title IX Rules Mean for Due Process

The long-awaited proposals for new Title IX regulations under the Biden administration were released last week, to mixed reactions. The proposals include changes to the way colleges investigate sexual assault, which has sparked concern and condemnation from civil liberties advocates.

Some critics believe that changing the process for sexual assault investigations will roll back due process rights for the accused, returning higher education to a climate that allegedly favored the rights of accusers, which prompted a flurry of lawsuits from alleged perpetrators in recent years.

Supporters of the changes argue that Biden’s Title IX regulations reverse rules established by the Trump administration that have silenced accusers and made victims less likely to come forward.

Arguments For and Against

The Biden administration’s proposed changes will drop mandated live hearings in Title IX cases—unless they are required by state law—that provided for cross-examination of accusers, permit a return to a single-investigator model, reduce the evidence a college must share with the accused to a written summary and allow colleges to investigate sexual misconduct without a formal complaint.

These changes roll back a number of regulations established under former secretary of education Betsy DeVos during the Trump administration that emphasized due process for the accused. Opponents of the DeVos regulations have welcomed the changes, though much of the reaction has fallen along party lines, with Democrats celebrating and Republicans fuming.

Richard Burr, a Republican senator from North Carolina and ranking member of the Senate Committee on Health, Education, Labor and Pensions, issued a news release calling the Biden rules deeply flawed, arguing that they take a step backward and undermine the judicial system.

“This attempted overreach is not only extremely concerning, but runs counter to federal court precedent and the opinions of leading legal experts, including the late Justice [Ruth Bader] Ginsburg. With this proposed regulatory change, it’s clear the Administration is placing accusations of guilt above fair consideration of the evidence,” Burr said last week.

Patty Murray, a Democratic senator from Washington who chairs the HELP Committee, landed on the opposite side, supporting the proposals last week with a celebratory tweet: “On the #TitleIX anniversary, I can’t think of a more fitting tribute than the Biden Admin today announcing they’ll replace the Trump-DeVos rule that led to survivors being silenced & campus sexual assault being brushed under the rug. The new rule will help make campuses safer.”

Some higher ed observers, such as KC Johnson, a professor of history at Brooklyn College and the CUNY Graduate Center, have warned that the proposed changes, which are largely a return to Obama-era rules, will lead to a “Title IX inquisition,” a system lacking checks and balances and limiting due process and therefore procedural fairness.

Johnson, who tracks cases brought by students accused of sexual misconduct, said by email that the new regulations represent “basically a return to the 2013-2016 system but in a dramatically different legal environment. Rather than having a standard system where all students will have the same core procedural rights regardless of where they go to school, as now exists with the DeVos regs, there will be wild disparities between public & private schools and also depending on what judicial circuit the school happens to be in.”

Essentially, that means precedent set by courts may shape different rules and outcomes based on where colleges fall geographically.

He added that colleges can uphold current procedures—including live hearings and greater access to evidence for the accused—if they choose to, since the new regulations don’t prohibit it, but he expects few institutions will do so.

Alexandra Brodsky, staff attorney at the nonprofit legal advocacy organization Public Justice, celebrated the proposed rules, which she considers a win for survivors of sexual misconduct.

Brodsky downplayed concerns about due process for the accused, arguing that the changes allow colleges to choose a disciplinary model that they deem most appropriate, rather than having a quasi-judicial model forced on them that she believes undermines victims’ rights.

“One thing I’ll note about [the] process is that the proposed regulations allow schools to choose from a number of different kinds of disciplinary models, including the one required by the current DeVos regulations,” Brodsky said by email. “That’s a return to the status quo over both Democratic and Republican administrations pre-Trump, and the state of school discipline law for all other kinds of misconduct: courts and federal agencies have long allowed schools discretion to design disciplinary procedures, so long as they respect certain fundamental rights, and had previously declined to impose a one-size-fits-all model. If a disciplined student or faculty member believes a school’s disciplinary policies—whether for harassment or any other kind of misconduct—don’t comply with due process or fundamental fairness requirements, that inquiry concerns schools’ obligations under the U.S. Constitution and state law, not Title IX.”

Striking a Balance

Other observers believe that the Department of Education struck a balance between the rights of survivors and the accused. They maintain that while the proposed regulations aren’t perfect, they are fairer than the 2011 Dear Colleague letter from the Obama administration—which some have blamed for a spike in reverse Title IX lawsuits by the accused—and the 2020 regulations from the Trump administration, which critics have said made victims less likely to report sexual misconduct.

“I think a lot of critiques of the 2020 regulations are based on the fact that they were off balance with respect to protecting rights and compromised the rights of complainants to benefit respondents. I think, in some sense, the Dear Colleague letter in 2011 did the exact opposite,” said Brett Sokolow, president of the Association of Title IX Administrators. “So the question was whether the Biden administration’s efforts were going to take us back to a more complainant-centered process, or were we going to achieve a better balance between the two? I’m pleasantly surprised to say I think they achieved a more balanced approach than I expected. I don’t know that it’s an ideal balance, and I think there are certainly ways to improve on it, but it’s not a one-sided process. It’s pretty well balanced and I think that’s a sign of the times and that the Department of Education is not ignoring the rights of all participants in the process.”

A 60-day comment period will follow the Department of Education’s June 23 Notice of Proposed Rulemaking, which came on the 50th anniversary of Title IX becoming federal law. The Biden administration summarized proposed changes in a fact sheet published last week.

Sokolow believes that as the Biden administration collects feedback on the proposed rules, certain aspects of the regulations will likely shift, meaning what has been proposed now is far from final.

Costly Reverse Title IX Cases

Critics of the 2011 Obama administration guidance suggest that overenforcement of campus sexual misconduct issues led to false accusations and unjust punishment. DeVos rescinded the Dear Colleague letter in 2017, but more than 700 lawsuits had already reportedly been filed by the accused.

“Before the Dear Colleague letter, there were virtually none of these lawsuits,” Johnson said.

Oftentimes universities settle with plaintiffs behind closed doors rather than proceed with expensive and messy court cases.

“With increasing frequency universities are settling before there’s a decision in the case because they basically can read the tea leaves,” Johnson said. “Or they’ll try to get the lawsuit dismissed; if they fail, then they’ll settle. The core demand for students in almost all of these lawsuits, with a handful of exceptions, is an expungement of the record—for them, to be able to say, ‘I was not found responsible for sexual misconduct.’ Because if you are responsible, your chances of transferring to another school are limited, or it will come up in jobs that require background checks and limit career options.”

Johnson believes there is little pressure internally or externally to provide due process for the accused, which is why he welcomed the DeVos regulations and is wary of Biden’s.

Brodsky, however, sees the DeVos regulations as pushing a one-size-fits-all disciplinary model on colleges and believes many of the lawsuits brought by the accused are questionable cases.

“I don’t think that they are succeeding because they are, in fact, meritorious. I think they are succeeding because courts are unusually sympathetic to them. I think that they are succeeding because they tap into a cultural narrative that the Me Too movement has gone too far and the real victims of sexual harassment are falsely accused men, which I obviously do not think is true. But I think that you can see that instinct at the heart of a lot of the opinions in these cases,” Brodsky said.

But will Biden’s proposed changes usher in a new era of reverse Title IX lawsuits, in which the accused claim to have been wronged in the investigatory process? Sokolow is skeptical.

“I think the regulations cleverly defer to the courts. It says we’re going to establish a floor, a baseline of procedural protections, and then based on your jurisdiction, on state laws, on federal court rulings, you’ll want to amp your level of procedural protections accordingly,” Sokolow said.

What’s more likely, Sokolow suggested, is that as certain rules around due process change under the proposed regulations, states will act on their own, enshrining protections into law.