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Biden Title IX Revisions Would Destroy Due Process, Create Legal Quagmires, and Not Solve Real Problems

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Biden Title IX Revisions Would Destroy Due Process, Create Legal Quagmires, and Not Solve Real Problems

By Jame Baresel

March 16, 2021

This past summer the State of New York and the City School District of New York filed a case for an injunction against revisions to Title IX regulations the Trump administration had implemented to assure due process for college students accused of sexual assault. The case was heard by United States District Judge John G. Koeltl, a member of the Democratic Party nominated to his office by former President Bill Clinton. Not only did the judge deny the injunction but he commended the revisions as having “the potential to benefit both complainants and respondents.”

Now, after less than two months in office, President Joe Biden has issued an executive order requiring a review of such reforms, as he had promised during his campaign and as over 100 Democratic members of Congress insisted in a letter to Secretary of Education Miguel Cardona. Either ignorantly or cynically, these politicians claim that the reforms are intended to “intimidate victims” or destroy protections for them.

In fact the Trump regulations do not even give students accused of sexual assault “the accused the same protections as a defendant in a criminal case.” They merely require “that colleges need to give notice of allegations; that accusers and accused have the right to an advocate and to appeal findings; that they have a right to a hearing on a reasonable timeline; and that witnesses can be cross-examined.”

And they were not much of an innovation, more a return to common sense accepted by both parties for decades until Obama era Democrats turned to an ideologically driven stacking of the procedural deck against the accused. Since then the ways in which Obama era rules violate due process and put false accused men at unjustified risk have received considerable attention. Other important factors have, however, frequently been overlooked.


Title IX regulations largely provide guidance for legal and forensic amateurs. Only one out of 57 college and university staff members responsible for implementing Title IX has professional courtroom experience. Most come from academic fields whose members are likely to conduct investigations through ideological preconceptions or from administration. [] The latter can be inclined merely to switch their method of protecting their institutions’ reputations, from covering up sexual assault to demonstrating that they “believe women.” Such individuals need instructions on objectively obtaining and weighing evidence on both sides of a case.


Obama era regulations have been applied in a prejudiced manner. Hundreds of students judged guilty of sexual assault by university authorities have challenged the findings in court on due process grounds. Approximately half the court rulings have been in their favor, despite the burden of proof being on them (as plaintiffs). Given the difficulties of mounting legal challenges to universities’ judgments against accused students, the number of innocent students who have suffered due process violations is inevitably higher than the number who have mounted such challenges. Such challenges bog down the time and money of universities as well as that of students.

One study has actually found that most Title IX sexual assault cases result from “misunderstandings and mixed signals regarding consent and usually involve alcohol, regret, and fuzzy memories” but that “students are encouraged, in situations like this, to file discrimination complaints with the Title IX office, where ideological staff stand ready to railroad accused students.” Even if (for the sake of argument) objective investigators could be fair to accused students while acting under procedures dating from the Obama era, the ease with which they can be used as a cloak for prejudiced investigations would necessitate the Trump reforms.


Even when Obama era regulations were in force and highly publicized, the vast majority of college sexual assaults went unreported, while many students filed complaints with the federal Office of Civil Rights alleging university officials responded to accusations of sexual assault with indifference or negligence. This suggests that the Obama regulations did little to force apathetic university officials to action. And it is clear that the Obama regulations didn’t remove the reasons many women fail to report sexual assault, predictably given it is a matter of human attitudes rather than structures. Either the problem is with the attitudes of university officials (those who can’t be bothered to do their jobs) or those of victims (preferring passivity over fighting through the unpleasantness of reporting and proving a case).

The truth is that the Obama regulations do not just undermine due process, they undermine due process without accomplishing much in return. Even when they have not been inimical to justice they have been at best a superficial response to a complex problem, at worst a meaningless gesture. While they might have greatly increased the extent to which female students felt the government is trying to do something to keep them safe, their impact on actual safety was minimal.