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When Rules Don’t Apply When Rules Don’t Apply Joe Biden wants to deny accused college students the procedural protections that he demands for himself. KC Johnson May 8, 2020 Politics and law Normally, it would be unremarkable to hear the opposition party’s presumptive presidential nominee criticize a major policy initiative of the incumbent administration. But Joe Biden’s public repudiation of

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Joe Biden wants to deny accused college students the procedural protections that he demands for himself.

May 8, 2020

Politics and law

Normally, it would be unremarkable to hear the opposition party’s presumptive presidential nominee criticize a major policy initiative of the incumbent administration. But Joe Biden’s public repudiation of Secretary of Education Betsy DeVos’s new Title IX regulations was not a normal circumstance. After several days in which Biden and key Democratic allies celebrated the importance of due process in evaluating sexual-assault allegations, Biden denounced DeVos’s own efforts to ensure that accused college students receive fair procedures. Even in an era of heightened political cynicism, the apparent hypocrisy was striking.

At one level, Biden’s reaction was understandable, since the new regulations undid an Obama-era initiative in which Biden was the key player. Convinced that male students typically stood by as they saw “a brother taking a drunk freshman coed up the stairs to his room,” Biden oversaw a multiyear effort to use Title IX tribunals to “change the culture” on campus. Due process, the rights of the accused, or the possibility of false allegations appeared in no public speeches that he gave on the topic; indeed, the concepts were obstacles to his goal. Too many not-guilty findings wouldn’t produce the needed change.

Then came the allegation by former Biden staffer Tara Reade, who charges that her former boss sexually assaulted her 27 years ago. Reade’s claim has many weaknesses, but it’s nevertheless weighty enough, as Andrew Sullivan and Robby Soave have observed, to yield a guilty finding from a Title IX tribunal under the procedures and standards of evidence that Biden championed. Biden has now urged the public to evaluate Reade’s allegations under traditional rules, respecting the presumption of his innocence. Reade, Biden maintains, should face rigorous questioning rather than enjoying the benefit of the reflexive belief that he had offered to campus accusers.

Prominent Democrats have gone even further. California senator Dianne Feinstein portrayed Reade’s long delay in going public with her charges as a sign of her unreliability—a not-unreasonable response, but a sharp contrast with how campus cases were adjudicated under the Obama-Biden rules, where counterintuitive behavior by accusers was regarded as a further sign of truthfulness. American Federation of Teachers president Randi Weingarten articulated the party’s new standard: Democrats “always want to make sure that a woman is respected. But you also want to make sure that people have due process.” Again, a wholly reasonable sentiment, but one that prominent Democrats previously had not applied to previous sexual-assault claims.

Subjected to what he claims is a false allegation, Biden might have used the DeVos regulations to acknowledge that college students—who can’t count on powerful senators or key educational union heads backing them—deserve the same opportunity to defend their innocence that he is getting. The new regulations, requiring colleges to provide both the accused and the accusing students with all the evidence compiled in an investigation and then to hold a hearing in which advocates for both students can cross-examine witnesses, hardly encompass a radical vision of due process.

Biden, however, could not rise to the occasion. Instead, he wildly claimed that the regulations would “shame and silence” campus complainants and “strip survivors of their rights”—as if Title IX, an equity statute, gives accusers the right to convene a kangaroo court to adjudicate their allegations. He promised to restore the Obama-era policies that created the due-process crisis on the nation’s campuses—even though implementing those procedures in 2021 would require at least some colleges to ignore Appeals Court holdings from lawsuits filed by accused students.

Two other sections of Biden’s statement amplify his hypocrisy. The DeVos regulations require investigation of allegations of quid pro quo harassment by staff or faculty, as well as of rape, sexual assault, stalking, domestic violence, and dating violence. They also require investigation of claims of sexual harassment as defined by the Supreme Court’s most important Title IX case, Davis v. Monroe County Board of Education. Biden, however, apparently sees a Title IX process focused on such serious offenses as a negative, allowing colleges “to choose to investigate only more extreme acts of violence and harassment,” ignoring allegations of less extreme offenses. This is an odd line of argument for someone who has admitted to making women uncomfortable by touching them in public, albeit without ill intent. Surely Biden would not support harsh punishment for a college student who engaged in behavior identical to his?

Biden also has promised to put the regulations “to a quick end in January 2021, because as President, I’ll be right where I always have been throughout my career—on the side of survivors.” A president ignoring properly adopted regulations is something for which Democrats appropriately criticized the Trump administration in 2017.

If Biden is oblivious to the absurdity of his demanding procedural protections that he intends to deny to college students facing similar allegations, other Democrats seem more self-aware. None has endorsed the DeVos regulations, but in sharp contrast with 2018, when the education secretary released a preliminary version of the new campus rules, only a few congressional Democrats have publicly criticized her work this time around. A tweet thread from Washington senator Patty Murray and statements from House leaders Nancy Pelosi and Steny Hoyer contained heated rhetoric but failed to specify even one provision of the regulations that they opposed.

Before the presidential campaign gets into full swing, perhaps a reporter could ask Biden to reconcile his response to Reade with his attack on the due-process protections in DeVos’s regulations. How can a college student facing a false allegation defend himself effectively under the Title IX procedures that Biden would reimpose on the nation’s campuses? And how would Biden defend himself against Tara Reade’s allegations, if he were held to those same standards?