News and Commentary

Department of Education Due Process Sexual Assault Title IX

To Protect Both Victims and the Accused, Biden Should Preserve Trump’s Title IX Reforms

Sharing is caring!

By Buddy Ullman
December 14, 2020

President-elect Joe Biden has suggested that he will put a “quick end” to Secretary of Education Betsy DeVos’s rule that details how educational institutions must comply with Title IX, the transformative civil rights law that prohibits gender discrimination, sexual harassment, and sexual assault in educational programs receiving federal financial assistance.

This is a terrible idea.

In 2011, the Obama administration under Biden’s leadership stipulated equivocal and mostly discretionary guidance to colleges and universities on Title IX (TIX) compliance and, in particular, how these institutions should adjudicate TIX disputes. The quasi-judicial proceedings that resulted generally lacked due process and free speech protections, were legally dubious and patently unfair toward the accused, and too often resulted in erroneous conclusions.

Some 669 court cases filed by accused students have resulted, for which the majority of judicial decisions rendered have been favorable to the plaintiffs, mostly on constitutional and fairness grounds. In a nutshell, the Obama/Biden TIX guidance created a mess, and the need for TIX compliance reforms emphasizing due process and other constitutional and civil liberties was compelling. These reforms were achieved in DeVos’s TIX compliance rule.

While a professor at the Oregon Health & Science University (OHSU), I had the misfortune of experiencing Obama/Biden TIX guidance firsthand. I was a respondent in a duplicitous sexual harassment investigation, in which I wasn’t allowed to know the allegations against me or the identities of the complainants or witnesses; nor was I permitted to present witnesses on my behalf, to submit or review evidence, or to defend myself. What happened to me is not unusual for a respondent in a Title IX investigation.

Ultimately, I was found responsible for sexual misconduct and punished, only to learn ten months after my case was closed that the charges against me were complete fabrications and motivated by retribution. Notably, the Department of Education’s Office for Civil Rights refused to intercede on my behalf because it concluded that OHSU had applied Obama/Biden era guidance appropriately. The DeVos rule, had it been operative at that time, would have precluded these shenanigans.

Ironically, President-elect Biden experienced multiple accusations akin to those faced by TIX respondents. In 2020, he was accused of sexual assault and numerous past incidents of inappropriate behavior toward women and girls but survived the ensuing storm because he was powerful, privileged, presumed innocent, and given a platform to defend himself.

Most TIX respondents aren’t so lucky. Had Biden walked in my shoes, he would have been prosecuted mercilessly under his own guidance.

Biden has not offered a persuasive rationale for voiding the DeVos rule other than a few platitudes about how the rule aims to “shame and silence survivors” and “gives colleges a green light to ignore sexual violence and strip survivors of their rights.” Survivors, Biden says, “deserve to be treated with dignity and respect, and…. not silenced.” The DeVos rule does nothing of the sort: it ensures fairness, equitability, and impartiality when a sexual misconduct dispute requires investigation or resolution, something Biden’s own guidance did not.

Of greater concern, the President-elect does not appear to understand TIX’s purpose. TIX has nothing to do with sexual violence, survivorship, or campus safety issues. Rather, TIX is about equal educational access, which the DeVos rule protects admirably. The only time that sexual harassment or assault concerns TIX is when the misconduct secondarily affects participation in school programs and facilities.

The DeVos rule has proved controversial and partisan, but it shouldn’t be regarded that way. I am a liberal, progressive Democrat who finds little to like among DeVos’s educational policies, but her TIX rule is a meticulous, detailed, and well-considered nonpartisan document predicated on the U.S. Constitution, judicial precedent, and congressional intent. Emphasizing fairness and justice, the DeVos rule is far superior to the guidance that it supplanted. This Democrat can separate the message from the messenger.

Reverting to the Title IX compliance nightmare of the Obama/Biden era would be a major setback to the cause of fairness and due process. We can only hope that Biden doesn’t follow through.