REPUBLICAN Attorneys General Argue Trump’s Title IX Rules Follow The Law Better Than Obama’s
Responding to a lawsuit by several state Democratic attorneys general, nearly as many of their Republican counterparts are coming to the defense of the Department of Education’s new Title IX rules. Fourteen top law enforcement officials, from Alaska to Florida, argued that the final regulation on sexual misconduct creates “reasonable standards for fighting gender discrimination in education,” while also providing a safeguard for free speech and due process. “The need for procedural due process only increases in the context of sexual harassment and misconduct,” says their friend-of-the-court brief. “A finding of guilt attaches a special stigma to the accused party that will stay with them well after they exit campus.”
Brooklyn College Prof. KC Johnson, who chronicles Title IX litigation, noted their brief “represents the highest-profile *political* support that the movement for campus due process has received,” he tweeted, calling it “a ringing indictment of unfair procedures” used by some of their own state universities.
The public support for the new Title IX rules come on the heels of monthslong opposition and litigation attempts from Democrats, who still favor the Obama-era rules on sexual misconduct proceedings. The ACLU sued to block implementation of the regulation saying it created a “second-class standard for reports of sexual harassment and assault.” The Republicans disputed that. The regulation promotes the “anti-discrimination purposes of Title IX without infringing on the free exchange of ideas,” they argued:
And as such, it rejects the notion that public universities can punish students for speech—no matter how offensive, disparaging, or unpopular it may be—unless it has been established that the speech prevents another student from participating in or enjoying the benefits of a recipient’s education program.
The due process rights of both accuser and accused are protected under the final regulation by mitigating against “arbitrary decision making,” the officials assert. Prior regulations and guidance contained “constitutional and statutory deficiencies,” such as authorizing “single investigator” models that deprive accused students of “impartial decision makers.” They tolerated efforts to inhibit live hearings and cross-examination, “even when witness credibility was at issue,” and “effectively eliminated” presumption of innocence.
Courts identified “numerous safeguards vital to fair process and the context in which a student accused of sexual harassment is entitled to receive them” following the Obama administration’s 2011 guidance on sexual misconduct proceedings, which the new regulation supersedes. “Plaintiffs and the academic institutions they claim to represent could have heeded the text and spirit of these rulings at any time,” the brief continues: “Instead, schools, colleges, and universities across the country divested students of due process and waited for the courts to intervene.”
“Numerous courts have recognized the constitutional deficiencies of such procedures,” the brief continued. The new rules step in “where academic institutions have failed,” knowing full well “for years that many of their disciplinary policies fall short of constitutional minimums.” Universities have instead waited for students “to force the issue through litigation,” the Republican AGs say.
thecollegefix.com-Christian Lubke
