BLUE State AGs Want To Limit College Students’ Due Process Rights. Red State AGs Are Fighting Back.
In June a group of 18 Blue State attorneys general filed a lawsuit against U.S. Department of Education Secretary Betsy DeVos to try and block new regulations that would provide much needed due process to college students accused of sexual assault.
In July a coalition of Red State attorneys general filed a brief defending the new regulations. The attorneys general from 14 other states (Amici States) filed an amicus brief to defend the regulations. The new rule, the AGs wrote, “requires educational institutions to investigate and, where proved, punish allegations of sufficiently severe, pervasive, and objectively offensive sexual harassment. It also provides a needed framework, consistent with long-standing Supreme Court precedent, that protects the foundational constitutional rights of due process and speech.” In their brief, the AGs make three arguments in defense of the new regulations.
First, the Amici States argue that the new regulations “set forth reasonable standards for combating gender discrimination in educational programs while safeguarding free speech and due process.” In support of this assertion, the Amici States emphasize that the new regulations track United States Supreme Court precedent set forth in Davis v. Monroe County Board of Education and follow the direction of the numerous courts that have repeatedly struck down unconstitutionally overbroad anti-harassment policies.
The Amici States’ second argument asserts, “Plaintiffs’ conscious failure to comply with Title IX and the constitutional norms—not the Final Rule—caused their alleged injuries.” In their lawsuit, the Plaintiffs claim that the regulations will cause them irreparable harm, especially if they go into effect as scheduled on August 14. The Plaintiffs are, in essence, arguing that the deadline is too short. The Amici States, however, powerfully point out that most of the protections provided in the regulations are “already required by the Constitution and recognized by the courts.” Indeed, there have been hundreds of lawsuits challenging the fundamental fairness of campus Title IX proceedings and courts in many of the Plaintiffs’ jurisdictions have questioned the sufficiency of the protections afforded by campus policies.
The final argument advanced by the Amici States is that “[s]tudents will suffer severe and irreparable harm from an injunction delaying the Final Rule.” Yet every day that the new regulations are not yet in effect is a day that institutions across the country will continue to irreparably harm students by denying them these basic procedural protections. The brief explains why the new regulations are so urgently needed and why issuing the injunction the Plaintiffs are requesting would be so harmful: The absence of meaningful safeguards in current disciplinary schemes means that academic institutions can and have imposed life-altering consequences on students without ever giving them a real opportunity to defend themselves.
Finally, the opening of the Amici States’ brief eloquently argues the merits of the new regulations’ approach. The brief persuasively articulates the appropriateness of the new regulation’s balance—an approach that doesn’t champion the rights of one side over the other, but instead provides a framework where sexual misconduct can be effectively addressed within constitutional boundaries. thefire.org-Joe Cohn dailywire.com-Ashe Schow
