Biden’s Education Department on July 20, 2021 issued new guidelines for how colleges should investigate sexual misconduct under Title IX.
The Biden administration has set forth new guidelines under the Trump Title IX regulations, which took effect a year ago. The new guidelines are a stopgap measure, indicating how federal officials will enforce the anti-discrimination law, while the department goes through the lengthy process of reviewing and revising the regulations.
The Trump-era Title IX rules, championed by former Education Secretary Betsy DeVos, added protections for students accused of sexual misconduct, like mandatory live hearings with cross-examinations. The DeVos rules have been criticized by victims’ advocates who say they let colleges off the hook for not taking sexual misconduct seriously. President Biden, who led a crusade against campus rape as vice president, said during his presidential campaign that he wanted to overhaul the regulations.
“Due process is not something you politically overhaul”, said Brad Koffel, an Ohio Title IX defense attorney who specializes in sexual assault defense in Columbus, Ohio. Koffel added, “live cross-examination has proven to be the most effective method of arriving at the truth of a dispute since ancient Greece. Even a discussion of eliminating that is crazy.”
The Biden administration is encouraging public universities to investigate incidents that don’t qualify as “sexual harassment” if the harassment is “so severe, pervasive and objectively offensive that it effectively denies a person equal access” to education. “This falls so far outside of Title IX I have no idea who is in the room when they are coming up with these guidelines” added Koffel.
Also, the Biden administration seems to deputize campus administrators to conduct off-campus crime as well. Attorney Koffel further responded, “This is an affront to due process as well as local detectives who have no financial interest in complying with government guidelines to protect government funding. Social workers are not criminal detectives.”
If a student is a “threat to others” the university can summarily remove the accused student from campus. “Again, so much for due process and the presumption of innocence. Also, who is not ‘threatened’ on an American campus right now? It seems like we have a generation of young people who get triggered by words, let alone conduct. This is a slippery slope of epic proportions.”
Interestingly, one of the more unusual aspects that the Biden left alone is that if a person does not testify live, their prior statements cannot be considered by the university.