Comment: Extinguishing Due Process Protections

Teresa R. Manning

Editor's Note: The following is a statement by Policy Director Teresa R. Manning on April 22, 2022, to the Office of Information and Regulatory Affairs (OIRA) regarding the Biden Administration's "Title IX Comprehensive Review" to promulgate a new Title IX rule. 

Thank you for the opportunity to speak to you today. My name is Teresa R. Manning, Policy Director at the National Association of Scholars (or “NAS”), a network of scholars and citizens committed to academic freedom, disinterested scholarship, and excellence in American higher education, which includes the freedom to speak and think independently.

I began my tenure at NAS as Director of its Title IX Project. In that position, I studied Title IX policies at several schools and personally visited Title IX offices at state universities in Virginia and New York State. That research resulted in a 2020 Report titled, Dear Colleague: The Weaponization of Title IX. Its findings inform my comments to you today.

I’d like to make three points about the Biden Administration’s current attempt to promulgate a new Title IX Rule, reportedly to lower due process protections for those accused of sexual misconduct and also to redefine “sex” to include sexual orientation and gender identity.

First, the initiative is wasteful. We all know that a new Title IX Rule was just issued by Secretary Betsy DeVos’s Education Department under President Trump. The DeVos effort lasted 3 years (2017-2020) and required the Department’s staff to review and respond to almost 125,000 public comments, resulting in 2,000 pages of commentary released with the Rule in 2020. That Rule balances the rights of both complainants and those accused, including key due process protections for the latter such as the presumption of innocence and the right to cross-examination - staples of the rule of law for centuries and necessary in dispute resolution for an outcome to have any legitimacy.

Needless to say, the current “Title IX comprehensive review,” announced by the Biden Education Department’s Office for Civil Rights in 2021, is duplicating the work of predecessors at a time when Title IX has already been addressed and other, urgent problems plague American education and therefore deserve attention more than the focus of this initiative; those problems include the student debt crisis, the campus free speech crisis and escalating college tuition as a result of campus “administrative bloat” of which Title IX staff are a part. (Another NAS Report titled, Priced Out, details this last problem.) Not giving the DeVos Rule a chance and further politicizing Title IX is therefore unfair to everyone affected by these problems but especially unfair to American taxpayers who are paying for this waste.

Second, as my Report Dear Colleague documents, current Title IX offices have not only lost sight of their purpose to preserve access to education regardless of sex, and not only do nothing to prevent sexual misconduct which might interfere with that access, but they actually actively encourage transient sexual encounters – called “hookups” – which not only teach students to use each other for sexual pleasure but which often result in the misunderstandings that then become Title IX complaints. For example, Virginia Tech in Blacksburg, Virginia, contracts with Gail Stern’s “Catharsis Productions” which promotes so-called “healthy hookups;” it also distributes sexually graphic brochures - as do most other Title IX offices I visited.

I rarely found material at these offices on how to build healthy relationships, or on how to avoid misunderstandings, or on how to avoid problems with alcohol, which, according to Title IX coordinators themselves, is a factor in over 90% of their cases. One might conclude that Title IX offices want sexual misunderstandings rather than their prevention. Much of their material is like lighter fluid, starting fires they then claim they’re needed to extinguish.

Finally, NAS opposes redefinitions by federal agencies of plain words in legislation such as the word “sex” in Title IX. The meaning of language in all legal instruments is the plain meaning intended by their drafters, which constitutes the “meeting of the minds.” This is true in contracts and wills as well as statutes. When agencies or courts tinker with the plain meaning of words, intended by drafters, they not only act beyond their competence but beyond their authority - which means they themselves become lawless.

Such “redefinition” activity is an end-run around the political process and cannot be tolerated by citizens of a democratic republic such as ours.

The plain meaning of “sex” in Title IX is male and female. The Education Department has no authority to change this. Any attempt to do so will result not just in litigation and distrust and anger but in lost legitimacy for the Department itself and, by extension, the entire Biden Administration.

Photo by Andreas Fischinger on Unsplash

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