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Title IX Revisions Face Legal Challenges Under New Administration

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Current Education Secretary Betsy DeVos formally issued new rules regarding Title IX, the law that prohibits sexual harassment (and prosecutes sexual assaults on campuses) in schools. Though intended to clarify confusing and contradictory past federal guidance that had weakened due process protections for students accused of misconduct, the new rules drew swift condemnation from Democrats —who accused the Trump administration of harming sexual assault survivors. Joe Biden vowed to put a “quick end” to the reforms if elected president.

The question on the minds of every lawyer who handles Title IX cases is this: will a Biden Administration reverse the DeVos “due process” regulations? As a lawyer who has been defending young men accused of sexual assaults for 25 years, I can assure every mother and father that the “DeVos Regulations” were a step in the right direction but far from equitable. To suggest that these regulations will be reversed is stunning to me.

But first, how would this happen? New regulations will have to go through a multiyear review as required by the Administrative Procedures Act. Going back to the previous Title IX standards would require an equally involved and time-consuming process. Then, the regulations could be blocked by a Republican-controlled Senate. Most importantly, is that federal courts have already ruled that it is indeed mandatory for education officials to provide certain due process rights to accused students.

If you are a parent researching lawyers to defend your son, here is a quick primer: during the Obama administration, the Education Department's Office for Civil Rights vastly expanded the purview of Title IX, advising colleges and universities that their funding could be at risk if they did not make more aggressive efforts to investigate harassment and assault.

The office's written guidance encouraged education officials to move toward a "single-investigator model," under which sexual misconduct claims were handled by a lone administrator rather than a panel. The guidance also discouraged the cross-examination of alleged victims by accused students and chipped away at due process. As a result, hundreds of students brought lawsuits against their universities for following guidance that they claimed violated their rights.

Under the Trump administration, DeVos made it a priority to fix this mess. Since the Obama-era guidance was just that—guidance, rather than a formal rule—DeVos was able to rescind it without much difficulty. Forcing colleges and universities to stop following the bad guidance, though, was a harder task. Education officials had to propose new rules, and then subject them to a lengthy public notice and comment period. It took from November 2018 until August 2020 for the rules to go into effect.

The “DeVos Rules” now require some form of cross-examination by the advisor for the accused, and require a “live hearing” before a panel.

I have been involved in too many Title IX “trials” where the accusation was the substantial equivalent of guilt, where my boys were expelled without due process, and there was serious bias against them simply because they are males.

As I recall, a lady by the name of Tara Reade made accusations against Joe Biden. Had his case been heard in a college Title IX setting, there is little doubt that he would have been found “responsible” (aka guilty) under the old regulations (and perhaps under the DeVos Regs).

Here is what every parent of a high school or college-aged young man needs to know: every single sexual encounter could easily escalate into a sexual misconduct investigation—as long as it occurred on a college campus, or involved college students or faculty—was one of the major reasons for revising Title IX.