Evading Title IX: The Two-Track Approach

David Acevedo

Editor's Note: This article was originally published under the name "John David," the former pseudonym of NAS Communications & Research Associate David Acevedo. To learn more about why David no longer writes under this name, click here.

CounterCurrent: Week of 9/6

In May, Secretary of Education Betsy DeVos took the much-needed step of introducing new Title IX regulations, guidelines designed to help put an end to the rampant injustice and corruption present in campus Title IX proceedings.

The thrust of DeVos’ updated regulations is twofold: first, they redefine the sexual harassment under Title IX’s purview to be that which is “severe and pervasive.” This is closer to Supreme Court precedent and will place many more cases in the hands of law enforcement, not Title IX officers, the majority of whom lack legal training. 

Second, the regulations return justice and fairness to Title IX proceedings, including requirements of in-person cross-examination, of the accused to know the charges leveled  against them, and of the presumption of innocence. Yes, these are all part of the new regulations and were not previously required practice.

But not everyone is a fan. Shortly after being introduced, DeVos’ regulations faced four challenges in court—from a group of blue-state Attorneys General, the state of New York, the National Women’s Law Center, and the American Civil Liberties Union. Thankfully, these efforts failed. The regulations are officially in effect as of August 14, and American colleges and universities receiving federal funding should be in current compliance.

And yet, as we have seen in other areas, schools with a penchant for disobeying federal law will find a way to sidestep regulations they don’t like. Enter what the NAS has termed the two-track approach. Colleges and universities will claim to comply with the new regulations, but only within the confines of the Title IX office itself. For example, at least two schools, Princeton and Tulane, have announced plans to create separate offices through which they will enforce their own sexual harassment policies. We expect many more to follow.

In this week’s featured article, NAS Policy Director Teresa Manning explains why we must keep a close eye on the two-track approach as it unfolds, for the sake of our students, professors, and staff. She writes:

Is this a move to evade the new due-process requirements? At Princeton, for example, its separate track allows for written cross-examination of witnesses, while the Trump [DeVos] regulations require a live hearing with in-person questioning of parties and witnesses, stating, “Such cross-examination at the live hearing must be conducted directly, orally and in real time by the party’s advisor of choice.”

NAS needs your help ensuring that America’s colleges and universities abide by the new Title IX regulations. We encourage you to visit your schools’ website and read what, if anything, has been announced about updated Title IX policies. If you notice anything contrary to the new regulations, or that your institution has not made an announcement at all, please let Teresa Manning know at [email protected].

CounterCurrent is the National Association of Scholars’  weekly newsletter, written by Communications & Research Associate David Acevedo. To subscribe, update your email preferences here.

Image: TriviaKing, Public Domain

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