Media Title IX

10 Times Better for Our Democracy

By Meg Mott
November 13, 2020

That’s what the new rules for Title IX are, argues Meg Mott.

As someone concerned about the fate of the Constitution under the Trump administration, I wish to publicly commend the Office for Civil Rights at the U.S. Department of Education. Through an arduous and inclusive process, it has struck an important balance between the rights of those accused of sexual assault and harassment and the needs of the accuser.

Unlike the earlier Obama-era rules, which demanded a “trauma-informed” process, the new rules follow the Bill of Rights. Instead of reducing accusers to psychologically damaged beings, the new rules require them to provide evidence for their accusations. Instead of assuming the accused is a sexual predator, it grants them the ability to mount a strong defense. By putting the burden on the institution to create a fair and adversarial system, both parties learn how to address harms in a constitutional democracy.

I didn’t always feel this way. Thirty years ago, I wanted the authorities to do more to protect women from sexual abuse. I believed that the right to due process gave sexual predators a free pass at the expense of victims. I advocated for the Violence Against Women Act, believing that stronger laws against sexual violence would empower survivors. As VAWA was implemented, the role of prosecutors was greatly expanded at the expense of women’s autonomy. If she balked at her co-parent’s impending imprisonment, the district attorney would override her wishes. Once the machinery was put in action, there was no turning back.

The Obama administration took some of the most illiberal components of VAWA and applied them to colleges and universities. A 2014 report from the White House Council on Women and Girls, titled “Not Alone,” declared that sexual assault “is a unique crime: unlike other crimes, victims often blame themselves.” Because the misconduct was assumed to damage the accuser’s psyche, basic principles of due process no longer applied. Complainants were described as “survivor” or “victim,” undermining the presumption of innocence. Neither party could freely discuss their case, a violation of their First Amendment freedoms. Persons charged with sexual harassment were not provided with specific details of the charge, nor were they given a chance to confront hostile witnesses — both violations of the Sixth Amendment.

By contrast, the new rules for sexual harassment define the complainant as “an individual who is alleged to be the victim of sexual harassment.” The respondent is “an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.” College administrations are banned from using “gag orders,” and both parties are allowed to cross-examine each other’s testimony. Sexual harassment, which had been a notoriously vague charge, must now itemize specific instances and use objective standards as determined by the U.S. Supreme Court in the Davis decision.

One would think that all Americans would applaud the restoration of basic liberties, but that has not been the case. Former U.S. secretaries of education Arne Duncan and John King tweeted that the new rules will “put the accused before the victim.” Speaker of the U.S. House of Representatives Nancy Pelosi described the new rules as the “Trump administration’s wanton war to destroy Title IX’s critical protections for students and holding schools accountable.” The American Civil Liberties Union, normally a defender of fundamental rights, declared that the new rules were “devastating for survivors.” In these polarized times, commitment to civil liberties is determined more by party affiliation than respect for the Constitution. That is not good for our democracy.

In Anglo-American jurisprudence, the deck is stacked against the prosecution for a reason. Following the calculus that it is “better that 10 guilty persons escape than one innocent person suffer,” our criminal justice systems was designed to lean toward liberty and away from revenge. William Blackstone wrote that guiding principle in the 1760s. Known as Blackstone’s ratio, Benjamin Franklin amplified it in the colonies: “Better a hundred guilty persons should go free than one innocent person suffer.” In the land of freedom, the machinery of justice was designed to be imperfect in order to protect the innocent.

The Obama-era Title IX rules followed a different calculus: better for 10 innocent persons to suffer than for one survivor to experience more harm. This perversion of the Blackstone ratio was not just demanded by advocacy groups — it became the mind-set of the Department of Education and the Democratic party.

But it’s not just Democrats who reject the demands of Blackstone’s ratio. When asked in 2016 whether it was better for 20,000 guilty people to go free or for 20,000 innocent people to be jailed, 40 percent of the participants said it was better to put 20,000 innocent people in jail. Think about that. Almost half of the participants want to sacrifice the innocent rather than let the guilty go free. The Cato Institute, which conducted the survey, found the strongest indicator was not race: 60 percent of African Americans, 61 percent of Caucasians and 55 percent of Hispanics agreed that imprisoning the innocent was worse than allowing the guilty to go free. The key indicator was whether or not the participant supported Donald Trump.

Had the Cato Institute asked college students whether it was better to let 10 guilty sexual offenders go free or expel 10 innocent persons, I worry that a high majority would opt for the expulsion of innocent people. By forcing colleges to use the “trauma-informed” approach, this generation of college students has confused therapeutic interests with citizen interests. The former focuses on the subjective experience of a harmed party and is best handled with an individual or family therapist. The latter focuses on the rights of all citizens in a democracy.

My hope is that under the new rules the next generation of students will develop the skills to live in a constitutional democracy. Those who have suffered from the actions of another will have a chance to describe how those actions affected their well-being and interfered with their education. Those who are accused will be afforded the chance to mount a strong defense. Everyone involved will need to use their thinking muscles and inner moral compasses to determine a just outcome.

The system will not work perfectly; some of the guilty will go free. But those inefficiencies are the costs society pays for freedom. The new rules give America’s future leaders a deeper appreciation for liberty, even when it works against their personal interests. Perhaps in a few years, more Americans will embrace Blackstone’s ratio. Better to let some of the guilty go free than look for healing in a judicial system designed to sacrifice the innocent.

~ Meg Mott is professor of politics emerita at Emerson College.

Why revisions to Title IX are good for democracy (opinion) (

Campus Sexual Assault Sexual Harassment Title IX

PR: Survey: Americans Want Colleges to End Campus ‘Kangaroo Courts’


Contact: Rebecca Stewart

Telephone: 513-479-3335


Survey: Americans Want Colleges to End Campus ‘Kangaroo Courts’

WASHINGTON / November 18, 2020 – A recent SAVE survey, conducted by YouGov, shows a strong majority of Americans support due process for college students accused of sexual offenses. The survey of 2,608 adults, representative of the U.S. population, reveals the following:

  • Students accused of sexual assault on college campuses should have the right to know the charges against them before being called to defend themselves. Agree: 81%
  • Students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system. Agree: 68%
  • Students accused of sexual assault on college campuses should be punished only if there is clear and convincing evidence that they are guilty of a crime. Agree: 75%

The survey also found that 68% of respondents said this statement, “Allegations of sexual assault on campus should be primarily handled by the state or local police,” comes closer to their opinion, compared to the statement, “Universities should take a leading role in investigating allegations of sexual assaults on campus.”

The recent survey was designed to replicate a 2017 survey conducted by the Bucknell Institute for Public Policy, which used the same questions and reported nearly identical results to the four questions listed above (1).

The Bucknell survey also queried, “Students accused of sexual assault on college campuses should have the right to cross-examine their accusers.” The new Title IX regulation only allows an intermediary to ask questions of the complainant, not the accused, so this question is no longer relevant to current campus policies.

Fieldwork was undertaken November 12-16, 2020.  The survey was carried out online. The survey results are representative of all U.S. adults, aged 18+. This survey was conducted using an online interview administered to members of the YouGov Plc panel of individuals who have agreed to take part in surveys. The full survey results can be viewed online (2).

To date, federal and state judges have issued 193 decisions favorable to accused students (3).  In a recent case involving Rensselaer Polytechnic Institute, Judge David Hurd utilized strong language to chastise RPI’s use of a double-standard. The court commented that “whatever answer may come to the question of how to secure the rights of an accusing woman and an accused man, that answer cannot be that all men are guilty. Neither can it be that all women are victims.” The plaintiff presented strong evidence that “RPI has come down on the opposite side of that truth,” the court concluded (3).

In recent years, mistreatment of both complainants and the accused have resulted in campus disciplinary committees being derided as “Kangaroo Courts.” (5) This week SAVE is launching a new campaign titled “Save Due Process on Campus.” (6) The goal of the campaign is to assure the incoming Biden Administration retains and vigorously enforces the new Title IX due process regulation (7).


Civil Rights Office for Civil Rights Title IX

More victories from my efforts to advance civil rights and challenge systemic sexism in higher education

By:  Mark J. Perry
     November 5, 2020

I was informed yesterday by the Department of Education’s Office for Civil Rights (OCR) that another of my (now) 244 complaints (probably the most ever filed by a single individual, at least for single-sex programs) alleging Title IX violations in higher education has been successfully resolved in my favor. That brings the total number of Title IX complaints to date that have been favorably resolved to 30 and there are close to 100 ongoing federal OCR investigations based on my complaints that I expect to also be successfully resolved in my favor (given the clarity of Title IX’s legal standard above and the clear and frequent violations of that law in higher education). Successful resolutions are illegal Title IX violations involving sex-specific female-only programs that are corrected with one of three outcomes: 1) the discriminatory program is discontinued, 2) the discriminatory female-only program is offset with an equivalent male-only program, or 3) the discriminatory female-only program is converted to a coeducational program open to all genders.

Here is information about the latest successful resolution of one of my Title IX complaints to the OCR:

In May 2019 I filed a Title IX complaint with the OCR against Duke University for operating three single-sex, female-only programs that illegally excluded and discriminated against male students. In August 2019, the OCR opened an investigation of Duke for violating federal civil rights laws (Title IX) for these three programs:

1. The Duke University Marine Lab has annually hosted the Girls Exploring Science & Technology (GEST) event, which as the program name indicates is a single-sex, female-only program that provided middle school girls only the opportunity to participate in hands-on science, technology, engineering and math (STEM) activities alongside female scientists working in those fields.

2. Duke’s FEMMES (Females Excelling More in Math, Engineering, and Science) as the program name indicates is a single-sex, female-only student-led education outreach organization whose mission is to engage young girls (only) in STEM (science, technology, engineering, math) fields through exciting hands-on activities and mentorship from female students and research faculty at universities. “In all components of FEMMES, female students and faculty members volunteer their time to instill enthusiasm about their careers in the developing minds of young women.” This education outreach program is discriminatory because it illegally excluded and discriminated against male students.

3. Girls STEM Day @ Duke as the program name indicates is an annual single-sex, girl only program that has taken place annually at Duke University in May for more than 100 middle and high schoogirls. This discriminatory program operated exclusively for girls and illegally excluded and discriminated against boys on the basis of sex against male students.

To resolve its Title IX violation, Duke University expressed an interest in voluntarily resolving the complaint before the completion of OCR’s investigation and signed a Voluntary Resolution Agreement (VRA) to address in allegations. In that VRA Duke agreed to decide by January 2021 whether it will: a) discontinue its discriminatory, single-sex, female-only programs or b) convert the female-only programs to coeducational programs open to all students and participants regardless of sex. If Duke chooses option (b) the university will also change the names of the programs “to eliminate any suggestion that they are for a single-sex and ensure that all communications related to the programs effectively communicate that the programs coeducational.” There is also an option for Duke to maintain the discriminatory names GEST and FEMMES but only if the university “can develop and implement strategies to effectively communicate to the applicable University community and the public that the programs notwithstanding their names are open to all students regardless of sex.”

From my experience, it’s easier for most universities to discontinue their illegal, discriminatory single-sex, female-only programs than to redesign them as coeducational programs open to all students including males. The programs and their supporters, staff, participants, and donors are too psychologically vested in female-only programs and it creates too much cognitive dissonance and consternation trying to get “buy-in” from key constituents to open those programs to males. The commitment to provide illegal special preferences to females usually outweighs any concern to legally provide equal educational opportunities to males, and it’s therefore easier to just discontinue and drop the discriminatory program than to include males.

And the graphic above from the current FEMMES (Females Excelling More in Math, Engineering and Science) website (see any patterns?) makes it seem like Duke hasn’t yet accepted the fact that it was just found by the OCR to be in violation of Title IX’s prohibition of sex discrimination. And it hasn’t yet accepted that the female-only FEMMES program is violating its own anti-discrimination policy (edited slightly for humor):

Duke University is committed to ensuring an environment free of prohibited discrimination, and our policies encourage an inclusive community that respects and values all of its members [except for males until we got caught].

In accordance with federal laws, Duke University does not discriminate on the basis of age, color, disability, gender, gender expression, gender identity, genetic information, national origin, race, religion, sex [except for males until we got caught], sexual orientation, or veteran status. We expand these protections further by also prohibiting discrimination based on gender identity, sexual orientation, and gender expression [except for males until we got caught].

It’s always both amusing and disappointing that so many universities so pretentiously, pompously and yet disingenuously profess their commitment to non-discrimination while at the same time discriminating on the basis of sex so openly and brazenly??

Here are some other updates on my civil rights advocacy:

1. In October, Western Washington University entered into a Voluntary Resolution Agreement with the OCR to resolve its Title IX violation for hosting and offering the “Girls Engineering Math and Science (GEMS) Academy,” which as the name indicates was a discriminatory, single-sex, female-only program that illegally excluded boys. The university was given until November 20 to decide if it would discontinue its discriminatory girl-only program or convert it to a coeducational program open to all genders include males. Given the fact that the program website no longer works, I’ll assume the university shut the illegal program down rather than legally open it to boys. Too much cognitive dissonance, too much vested interest in girls, and not enough buy-in to include boys, see above.

2. Also in October, Oregon State University resolved the federal investigation of its Title IX violation for offering five discriminatory illegal female-only faculty awards by opening the five awards “to anyone in the OSU community who has worked to advance gender equity.” Prediction: The awards will continue to be given to female faculty, but at least male faculty will now be technically eligible to receive these awards. We’ll call this a hollow Title IX victory.

3. In the last month, the OCR has opened 11 federal investigations of civil rights (Title VI and IX) violations based on my complaints for the following universities in the last month:

a. The University of Connecticut for its Outstanding Senior Women Academic Achievement Award, the Women Of Color Collective (WOCC) Event (Title VI), and the Men’s Project, a single-sex, male-only program “to train students who identify as male to positively influence their peers by challenging social norms that promote gender-based violence; understanding their connection to survivors of gender-based violence; and role modeling effective bystander interventions.” This is my first Title IX complaint for a male-only program. However, the program is offered through the university’s Women Center, so I suspect it’s probably a program for men to address their toxicity and privilege.

b. Yale University’s School of Management for a series of illegal, discriminatory single-sex, female-only programs including Programs for WomenWomen’s Leadership Program Live Online, the Women’s Leadership Program, the Women’s Leadership Program Online, and Women on Boards.

c. The University of Alabama Birmingham for six discriminatory, single-sex, female-only staff, student, and faculty awards.

d. University of Connecticut for its BOLD Women’s Leadership Network.

e. Loyola Marymount University for hosting and partnering with the girl-only Project Scientist program.

f. University of Wisconsin Madison for its discriminatory Center for the Advancement of Women in Science and Medicine.

g. University of Minnesota for its Women’s Leadership Institute and the Women In Leadership program in the Carlson School of Management.

h. SUNY College of Environmental Science & Forestry for its Girls’ Summit program.

i. California Institute of Technology for hosting the discriminatory Project Scientist organization.

j. Lakeland Community College (Ohio) for its Woman of Achievement Awards.

k. State University of New York Albany for a variety of 14 different single-sex, female-only scholarships, awards, centers, academies, initiatives, and programs. This is a good example of a university that has tolerated illegal sex discrimination and allowed it to spread unchecked throughout the entire university. I’m sure I haven’t yet uncovered many other civil rights violations at SUNY-Albany as an outsider reviewing its websites.

Bottom Line: A university that tolerates and promotes so much illegal sex discrimination must either not even be aware that they are violating federal civil rights laws or be aware but not care because they think it’s acceptable to discriminate against certain groups. And SUNY Albany’s not alone, they’re fairly typical of the hundreds of American universities that practice systemic sexism with impunity. So either they’re ignorant of federal laws prohibiting discrimination or they think they’re above the law. In either case, it’s a sad indictment of “higher” education.

More Victories from My Efforts to Advance Civil Rights and Challenge Systemic Sexism in Higher Education

Campus Sexual Assault Sexual Harassment Title IX

Students accused of non-Title IX misconduct should get fair hearings, too

Students accused of non-Title IX misconduct should get fair hearings, too

November 12, 2020

Students sometimes ask why FIRE spends so much time making sure students accused of sexual misconduct receive fair hearings. They’ve noticed that over the past decade, a lot of our work has focused on the interplay between Title IX and due process. But things weren’t always this way. While FIRE has always been on the front lines of the battle to ensure students accused of misconduct are given a meaningful opportunity to defend themselves before they are punished, our biggest early due process case centered around a Facebook post about a parking garage — it had nothing to do with sexual misconduct at all. FIRE started focusing more on fundamental fairness in sexual misconduct disciplinary procedures about a decade ago, when colleges and universities, under the direction of the federal government, started throwing away procedural safeguards specifically in sexual misconduct cases and not in other cases.

Our goal is to ensure that all students facing serious punishment like long-term suspension or expulsion receive a meaningful opportunity to defend themselves.

This year, the Department of Education finally mandated that schools bound by Title IX (almost all colleges and universities nationwide) guarantee students accused of sexual misconduct under Title IX many critically important procedural safeguards to ensure they are not punished without due process. So what now?

FIRE’s goal was and is not that students accused of sexual misconduct be treated more fairly than students accused of other misconduct. Our goal is to ensure that all students facing serious punishment like long-term suspension or expulsion receive a meaningful opportunity to defend themselves, including the right to a presumption of innocence, information about the charges and the evidence against them with time to prepare before the hearing, and a live hearing with an opportunity to cross-examine witnesses. Federal regulations now require that students facing discipline under Title IX are afforded these protections. This is a solid advance for campus justice, but schools owe students an explanation if they’re not going to treat non-Title IX cases with the same care with which Title IX cases will be handled going forward.

To help ensure all students facing serious punishments are guaranteed fundamentally fair hearings, FIRE has written a template letter students can send to their college or university.

As suggested by the Supreme Court of the United States in Goss v. Lopez, the formality of school disciplinary procedures required to achieve due process depends on what’s at stake. This factor — not whether alleged misconduct is sex-based — should be key in determining what kind of safeguards against unjust punishment a student is afforded. Case law in recent years has affirmed that where students’ educational careers may be derailed, robust safeguards like those now required by Title IX regulations are integral to a fundamentally fair process. And, of course, it would be just as reasonable to suspend or expel a student for creating a hostile environment based on race or for assaulting another student in a non-sexual context as it would be to suspend or expel them for sexual misconduct.

To help ensure all students facing serious punishments are guaranteed fundamentally fair hearings, FIRE has written a template letter students can send to their college or university asking it to provide students accused of non-Title IX misconduct the same safeguards students are entitled to receive under Title IX regulations. Whether schools choose to adopt FIRE’s Model Code of Student Conduct or simply make their new, regulations-compliant sexual misconduct procedures applicable in all cases where students face long-term suspension or expulsion, improving the process is an essential step towards protecting student rights.

As always, students, faculty, or administrators with questions shouldn’t hesitate to email us at

Here is our template letter:

Dear President [Name]:

As an institution bound by Title IX of the Education Amendments Act of 1972, [Institution] must abide by the Department of Education’s new Title IX regulations, which took effect August 14. The regulations require that schools like [Institution] guarantee students several important procedural safeguards in disciplinary proceedings prompted by allegations of sexual misconduct to ensure students have a meaningful opportunity to be heard.

Yet at present, [Institution] does not provide all of these safeguards in non-Title IX cases. I am writing to ask [Institution] to provide these safeguards to students in disciplinary proceedings for all cases where students face long-term suspension or expulsion. Where the stakes are high, the principles of due process and fundamental fairness require procedures tailored to help fact-finders arrive at accurate conclusions — whether the allegations are of sexual misconduct or non-sexual misconduct.

Among other elements, the Title IX regulations require schools to guarantee presumption of innocence, sufficient notice of charges, sufficient time with evidence to prepare for a hearing, impartial fact-finders, and live hearings with an opportunity to question witnesses. These safeguards help ensure that complaints of sexual misconduct will be taken seriously while all students accused of sexual misconduct are afforded a fundamentally fair process before being subjected to potential discipline. But just as allegations of sexual misconduct must be handled with care and integrity, so too should allegations of other types of serious misconduct.

To assist institutions with this goal, the Foundation for Individual Rights in Education has crafted a comprehensive “Model Code of Student Conduct.” FIRE’s Model Code includes definitions of key terms, an explanation of the institution’s jurisdiction, prohibited conduct, and disciplinary procedures that incorporate—into both sexual misconduct cases and non-sexual misconduct cases—the procedural safeguards mandated by the new Title IX regulations. The full Model Code is available on FIRE’s website at, and you can send questions to FIRE at

[Institution] can also better protect student rights simply by making its new, regulations-compliant sexual misconduct procedures applicable in all cases where students face long-term suspension or expulsion. Students should be granted the safeguards required by the new Title IX regulations not because the allegations relate to sexual misconduct, but because the potential sanctions can be life-changing. To deny students in serious non-sexual misconduct cases those same safeguards, therefore, is unjustifiable and unfair.

Incorporating the important protections listed above into our student conduct procedures for all cases where students face serious punishments would establish our institution as a leader in protecting the rights of all students and the integrity of our hearing processes. I hope to see [Institution] take this step to make all serious disciplinary proceedings fair.




Campus Sexual Assault Sexual Harassment Title IX Title IX Equity Project

Biden is President-Elect. Can We Just Ignore the Title IX Regulations Now?

November 9, 2020

TNG Consulting and Brett Sokolow

It has been a week! We now know that Joe Biden is the President-Elect of the United States of America. There will still be some legal wrangling, and nothing is set in stone until the electors vote in December. But, assuming this outcome is maintained, you’ll likely be able to ignore Executive Order 13950 (“Combating Race and Sex Stereotyping”). But, what about the Title IX Regulations?

You’ve always had the option to ignore them. The question is whether you’re willing to accept the consequences of that decision. If so, compliance is a choice. If not, you need to comply. So, to make an informed decision, you need to know what the consequences are.

In just 70 days (plus or minus) there will be a new administration. The Office for Civil Rights needs to be directed to come after you for failing to comply with the regulations, and their new Biden-appointed supervisors aren’t likely to do that. Even if OCR were to enforce, you could drag it out and appeal. There is no way for OCR to issue a 305 notice of adverse enforcement action within 70 days, and even then that would have to be referred to the courts, so you’re probably pretty safe on that front.

The problem is the courts. Deprive respondents of their regs-based rights, and they will sue. Trump-appointed judges and others who value due process over victim’s rights will use the regulations as the basis of enforcement through litigation, though exactly how that will work remains to be tested. Do you want to be the test case? Maybe you’ll face a TRO. It’s temporary. Could President Biden’s ED act to rescind the regulations before a permanent injunction would be implemented? That would stop judges from enforcing the regs. Litigating to trial could take two years. By that time, Biden’s administration will have acted to at least rescind the regs, if not replace them, right? That would moot the lawsuit. So, you have to decide whether fending off some lawsuits is a reasonable price to pay for liberating your campus or school from the regulations.

Of course, President Biden won’t rescind the regs personally. That will be done by the Secretary of Education. How long will it take the Biden transition team to vet and select a nominee for Secretary of Education? How long might it be until a Secretary of Education is in place (must be confirmed by the Senate), builds a new team, and works through his/her/their priorities until Title IX hits the top of the list? It could be a year. ATIXA expects many colleges and schools will maintain their compliance with the regulations until then, but we also expect some loosening over time, as signals are issued from the Biden administration and the Department of Education about how they’re going to play this. What will change?

An informal poll of the ATIXA Title IX experts came up with these top ten targets:

  • Relief from direct cross examination by an advisor (cross-examination is not going anywhere, but we expect a lessening of the rigid regs requirements)
  • Removal of the nonsensical exclusionary/hearsay rule regarding “statements”
  • Revocation of the confusing rules on relevance v. directly related evidence
  • Two ten-day review periods likely collapsed into one period
  • Formal complaint requirement will be reversed
  • Hearing requirements for at-will employees will be limited
  • Hearings will only be required when some form of separation is on the table, and the definition of hearing will be broader and less formal
  • Mandated dismissal of Title IX complaints removed
  • Broad retaliation protections rolled back, especially as applied to respondents
  • Removal of any necessity for two processes

We do expect there will be some legal counsels who evaluate the risk and advise their schools and districts to move away from the regs to a best practices model (ATIXA’s Process B?) immediately. We can’t and won’t advise you to do so yet (and some circuit courts of appeals won’t allow it), and we don’t advise you to ignore the regs without first consulting your attorneys. Doing the right thing by implementing a best practice model may wind up being a very defensible position going forward. ATIXA will have its eyes on ways to effectively balance the rights of complainants and respondents, and how we can help you to do so as the rules for Title IX likely shift again in the coming years.

If we had to prognosticate, we’d guess that fairly early on, the Biden administration will rescind the 2020 regulations, and implement another new Dear Colleague Letter/Q&A style approach, like what ED did in 2017, to fill the gap. Simultaneously or soon thereafter, ED will announce a process to issue new regulations under the APA (which will then take 1 year to 18 months). The DCL won’t bring back 2011 but will likely use a framework that modifies the current regulations per our above laundry list. This is the mostly likely scenario, but don’t write off a Title IX Restoration Act in Congress, especially if the Senate goes blue after the Georgia runoff elections in January.


Campus Due Process Sexual Assault Sexual Harassment Title IX

Barrett Confirmation is a Win for Due Process on Campus

Barrett Confirmation is a Win for Due Process on Campus

By Edward Bartlett

In her swearing-in ceremony, new Supreme Court Associate Justice Amy Coney Barrett pledged “to do my job without any fear or favor, and that I will do so independently of both the political branches and of my own preferences.”  While many speculate on how the tenure of the 115th justice will impact the court, one thing is a near certainty – it is a win for due process and ending sex discrimination on university campuses.

For nearly a decade, college administrators have interpreted Title IX in a way that allowed them to discriminate against students based on sex by offering, among other things, sex-specific STEM courses, leadership development programs, and scholarships.  Additionally, universities have used Title IX to railroad students who have been accused—not convicted—of harassment or sexual assault. Thankfully, the U.S. Department of Education released regulations earlier this year that protect students from these types of discriminatory practices.

On this topic, Barrett has shown herself to be a fair jurist—an originalist who interprets the law as it is written not as she wishes it was. And the law is clear when it comes to Title IX—discrimination based on a student’s sex is prohibited.

At her announcement ceremony in the White House Rose Garden, Barrett made it clear that she doesn’t care who a person is when considering a case but what the law says. Barrett stated she would, “administer justice without respect to persons,” which is exactly what’s missing on today’s college campus where an entire sex is shut out of classes and a mere accusation is enough for expulsion.

When one sex discrimination case, Doe v. Perdue University, was put before the U.S. Court of Appeals for the 7th Circuit, Judge Barrett wrote the panel’s opinion after they revived the student’s right to due process.

The student, referred to as John Doe, was accused of sexual misconduct, which he denied. He was suspended, discharged from the school’s ROTC program, and stripped of his ROTC-related scholarship, even though he was not allowed to call witnesses or defend himself in any meaningful way.

Barrett wrote, “Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension . . . John received notice of Jane’s allegations and denied them, but Purdue did not disclose its evidence to John. And withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair.”

This may seem like an isolated incident that’s the result of an overzealous administration with an ax to grind. But I assure you, this type of sex discrimination is happening to male students all over the country despite the recent changes to Title IX.

Judge Barrett isn’t the only well-known judge with experience in sex discrimination. Almost half a century ago, the late Supreme Court Justice Ruth Bader Ginsburg, the judge Barrett is set to replace on the country’s highest court, made waves when she represented Charles Mortiz in Mortiz v. Commissioner of Internal Revenue after he was denied a tax deduction for expenses related to the care of his invalid mother. Only women and previously married men were allowed the deduction, so Mortiz, a lifelong bachelor, was denied it due to his sex. Thanks to Ginsburg, that discriminatory decision was eventually overturned.

While Justice Ginsburg never ruled on a Title IX case related to campus sexual assault, she did comment on the issue in 2018, stating, “there’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing,” and that, “the person who is accused has a right to defend herself or himself.”

I agree with Justice Ginsburg and believe that clarity on sex discrimination will help set the tone when it comes to Title IX compliance. Which is one very important reason to celebrate Justice Barrett’s confirmation to the Supreme Court.

Campus Sexual Assault Sexual Harassment Title IX

N.Y. and Ed Dept. Dismiss Title IX Rule Lawsuit

By Greta Anderson

November 5, 2020

The State of New York and the U.S. Department of Education agreed Tuesday to dismiss the state’s lawsuit against the department and Secretary of Education Betsy DeVos. The lawsuit, filed in June by state officials and the Board of Education for the New York City school district, challenged the Trump administration’s new rules for how colleges and universities respond to campus sexual assault and harassment.

The lawsuit is the second to be dismissed of four lawsuits that were brought against the department due to the new rules, which were issued in May under Title IX of the Education Amendments of 1972, the law prohibiting sex discrimination at federally funded institutions. Last month, a judge for the district court in the District of Columbia dismissed a lawsuit filed by the American Civil Liberties Union on behalf of advocacy organizations for survivors of sexual assault.

The State of New York’s lawsuit, however, was voluntarily dismissed, according to court documents filed in U.S. District Court for the Southern District of New York. Both the state and the Department of Education agreed that Tuesday’s dismissal would not prevent the state or its institutions “from asserting the invalidity” of the Title IX regulations if New York schools are sued for sexual assault or harassment-related claims, the agreement said.

As of Nov. 4, there are two remaining lawsuits that challenge the legality of the Title IX regulations. One lawsuit filed by the National Women’s Law Center and other legal advocacy groups is scheduled to go to trial starting Nov. 12 in United States District Court for the District of Massachusetts. Arguments in another lawsuit, which 18 attorneys general are backing, are scheduled to stretch into 2021, according to court documents.