DUE PROCESS For Title IX In The #MeToo Era
The issue of due process came roaring back to the forefront of national discourse recently. The nation contemplated the sexual assault allegations made against Presidential candidate Joe Biden by Tara Reade and the resulting hypocritical response by Democratic politicians. Hypocritical because when then Judge Kavanaugh was accused of sexual misdeeds, Democratic leaders were quick to adjudge him guilty as accused. Indeed, Democratic Senator Mazie Hirono stated “men should just shut up …women like [Kavanaugh accuser] Dr. Ford need to be believed.”…“This process is sending the worst possible message to girls and boys everywhere,” Gillibrand said. “It’s telling American women that your voice doesn’t matter. It’s telling survivors everywhere that your experiences don’t count. Senator Gillibrand also lambasted the Republican defense of Kavanaugh.
When confronted with similar allegations against Presidential candidate Biden, Gillibrand stated – “I stand by Vice President Biden. He has devoted his life to supporting women and he has vehemently denied this allegation.” Has Senator Gillibrand had an epiphany and suddenly realized the importance of due process when evaluating sexual assault allegations? Sadly, no. Senator Gillibrand simply chooses to apply one standard for her friends and one standard for her enemies.
Senator Gillibrand and Presidential candidate Biden’s hypocrisy is exemplified by their continued opposition to Secretary of Education Betsy Devos’ attempts to make Title IX disciplinary hearings fairer and equitable. Indeed, Biden championed the 2011 Dear Colleague Letter to universities that eviscerated due process in Title IX hearings. Judges have been skeptical about the legality of Biden’s standard for investigating sexual assault allegations, which has come to be emblematic of the “Believe All Women” mantra of the #metoo movement.
Repeatedly, courts have found the Biden Title IX standards fundamentally unfair. Indeed, one federal judge described Brandeis University’s disciplinary process as being “closer to Salem 1692 than Boston 2015.” The judge further stated:
“Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning… If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision.”
Even more hypocritical is that Biden and Gillibrand demand that Biden himself be afforded the benefit of the doubt in light of the allegations against him, but simultaneously oppose Secretary Devos’ common sense Title IX revisions – including requiring that investigators be impartial and allowing the cross-examination of a complaining witness’s credibility.
Thankfully, despite Biden and Gillibrand’s hypocritical opposition, Secretary Devos announced the implementation of the revised Title IX regulations. More than a year after issuing a draft rule, the department released final regulations on how colleges and universities must treat students involved in disciplinary procedures under Title IX, the federal law that bans sex discrimination—and has been interpreted to include sexual misconduct—in federally funded education programs. Institutions will finally have to guarantee due process for students caught up in campus kangaroo courts.
smerconish.com-David Struwe
