THE NEW Title IX And Its Challengers
The last four years have witnessed a series of desperate attempts to frustrate Education Secretary Betsy DeVos’ goal of creating a fair Title IX adjudication framework to replace the one-sided guidance she inherited from the Obama administration. Now comes the final attempt: four lawsuits to block the regulations, filed by a coalition of blue-state attorneys general; the state of New York; the National Women’s Law Center (NWLC); and the American Civil Liberties Union (ACLU). Along with contemporaneous letters denouncing the regulations from House and Senate Democrats, the complaints provide an unintentional, if depressing, reminder of how one-sided ideas about campus justice first offered during the Obama era continue to dominate the thinking of Democratic officeholders on Title IX.
The regulations themselves address two major areas of concern. The first defines sexual harassment by tethering Education Department policy more closely to the Title IX statute and relevant Supreme Court precedent. The regulations will also provide for a fairer adjudicative process—through cross-examination by an advisor, access for both parties to the evidence compiled by the university investigator, unbiased training for university adjudicators, and presumption of innocence for the accused. Since few, if any, institutions currently ensure that accused students receive each of these protections, these changes are far more consequential.
Incredibly, for some opponents of the regulations, even the presumption of innocence goes too far. To thirty-six Senate Democrats, plus Bernie Sanders, “requiring the schools to presume there was no wrongdoing” meant that “students coming forward will have the impression the school assumes they are not telling the truth.” The NWLC fantastically maintained that a presumption of innocence in Title IX cases was “based in sex discrimination and exacerbates the myth that women and girls often lie about sexual assault.” As a result, its complaint contended, the presumption “tilts the process” in favor of the accused.
Despite the Supreme Court deeming cross-examination the “greatest legal engine ever invented for the discovery of truth,” the Democratic attorneys general cited three articles, two of which involved cross-examination of children, to contend that cross-examination actually leads “to less reliable outcomes.”… It would be extraordinary for a federal court to hold that cross-examination or the presumption of innocence violate Title IX. The clock is ticking: absent judicial intervention, fair procedures will come to campuses nationwide on August 14.
mindingthecampus.org-KC Johnson
