Deep Dive Episode 91 – The Expected New Title IX Rules
The Education Department’s Office for Civil Rights (OCR) is expected to issue in the coming weeks its long-awaited new rules for colleges and other educational institutions to follow in handling allegations of campus sexual harassment and assault. A highly controversial draft of the new rules has almost completed a notice-and-comment process launched in September 2017 by Secretary of Education Betsy DeVos. She said that the Obama Administration’s OCR’s decrees on such matters, and the processes used by virtually all universities, were stacked against accused students, almost all of them male, and often harmed accusers as well.
Spurred by judicial decisions and other evidence showing that innocent young men have been railroaded out of college with life-changing, often ruinous consequences, OCR issued its more than 30,000 words of proposed rules and comments in November 2018. The proposals would require numerous procedural safeguards, narrow the definition of sexual harassment, and limit university liability for off-campus events. Dozens of advocacy groups and universities, as well as tens of thousands of individuals, filed more than 120,000 formal comments over the next two months.
The vast majority were denunciations of the proposed rules by feminist and victims’ rights groups, Democratic legislators and state attorneys general, and universities. The schools have financial and other incentives, including fear of campus activists’ wrath, to oppose more than minimal procedural protections for accused students. They argue that OCR’s proposals – especially those requiring live hearings with cross-examination – would be so traumatic for accusers that most would choose not to report sexual misconduct.
But civil liberties advocates, some law professors at Harvard and elsewhere – including a few prominent feminists — and families of accused students filed strong responses. They argue that the universities’ pattern of presuming guilt and ignoring evidence of innocence is so entrenched that only federal action could bring a modicum of fairness. These commenters cite over 160 federal and state judicial decisions in recent years finding campus rules and bureaucrats alike biased against accused students.
Whatever the final rules may say, they are sure to be challenged both in court and in Congress as inconsistent with Title IX, the Constitution, or both.