The new rules governing Title IX in colleges and universities are due to become final–and even for some on the left, the rules go too far. The state of Ohio school board urged individual schools not to follow the new guidance because it gave transgender boys the opportunity to compete as girls.
But there’s also a new rule governing sexual assault in colleges and universities. Donald Trump’s secretary of Education, Betsy DeVos, wrote new rules that overturned the draconian, un-American rules on sexual assault that first came out under Barack Obama that denied the accused any semblance of due process and put a thumb on the scale that virtually guaranteed that a male student would be considered guilty.
“Always believe the woman” became a nightmare that derailed the careers of many male students.
DeVos changed that. But now, Biden has reversed the DeVos rules and returned colleges to a standard that denies young men due process and makes it a simple matter to dismiss a student without even a fair hearing.
The Biden administration regulations also require schools to apply a “preponderance of the evidence” standard when investigating complaints. Under that standard, investigators must find an accused student guilty if they conclude it is more than 50 percent likely that the allegations are true. Under the DeVos regulations, by contrast, universities needed “clear and convincing evidence” to punish an accused student.
Under the new regulations, Title IX investigators can deny students access to the evidence against them. They are required only to give accused students a “description of the relevant evidence.” That description can be given “orally,” meaning accused students are not entitled to review testimony, transcripts, or other records used to determine their guilt. The new rules also allow schools to deny accused students a live hearing and the opportunity to question their accusers.
It’s not like the Obama-era rules were appeal-proof. Reason.com notes that “since 2011, approximately 117 federal courts, as well as a number of state courts, have raised concerns about the lack of meaningful procedural protections in campus adjudications.”
These judges, like many other critics, viewed Obama’s Title IX rules, which Biden is now copying, as fundamentally unfair. “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,” wrote Judge F. Dennis Saylor IV of the U.S. District Court for the District of Massachusetts in the 2016 case Doe v. Brandeis University. “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.”
The basic argument by the left when opposing Devos’s rules was that it would make it harder for women to come forward. If they mean it would be harder for a woman to make a scurrilous sexual assault claim, that’s a good thing, isn’t it? Just because it would be more difficult for the victim of a crime to come forward, that shouldn’t negate the clearly defined due process rights of the accused — rights granted to serial rapists as well as a stupid college kid.
Congress should take up this issue if only to stop this nonsense of changing the rule back and forth depending on who is president. But as long as Democrats insist that “all women must be believed,” that’s not going to happen.
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