Membership Action Item: Opportunity to Protect Title IX Due Process

Teresa R. Manning

Dear NAS Member,

As you may have heard, the Biden Administration is in the process of promulgating a new Title IX regulation to replace the Rule issued by former Education Secretary Betsy DeVos. Title IX is the federal law banning sex discrimination in schools receiving federal funds, now used to address sexual misconduct on campus and frequently abused by feminists who see it as a weapon in the sex wars –that is, to falsely accuse men of sexual assault.

The Biden initiative wastes tax dollars as it duplicates much of what DeVos already did, such as a “comprehensive review” of the law’s applications. The result of Secretary Devos’s efforts was a new regulation that strengthens due process for those accused and also ensures supportive measures for complainants. It took effect in August of 2020 – less than 2 years ago.

The Office of Management and Budget (OMB) is now scheduling public comment sessions at its Office of Information and Regulatory Affairs ("OIRA") so individuals can express their concerns about Title IX going forward. Though Biden’s proposed replacement Rule has not yet been published and therefore the text cannot be the subject of comment, the meetings are still an opportunity to shape the public record – and, most importantly, to express support for the basic due process protections that the DeVos Rule guarantees: the presumption of innocence, the right to know specific accusations, the right to see all evidence (including exonerating evidence), the right to appeal and, in higher education, the right to cross-examination (by representatives and in separate rooms, if requested).

The Biden proposal is also expected to redefine the word "sex" to include not just sexual orientation but also "gender identity." This will enable students to use Title IX for complaints about a hostile environment if they think that hostility is because of their sexual orientation or because of their expressed "gender identity,” including their stated pronoun preferences.

Such redefinitions by federal agencies constitute yet more unlawful agency overreach and would violate current United State Supreme Court jurisprudence, many state laws as well as the plain meaning of this federal statute.

We urge NAS members to make an appointment with OIRA not only to state their support for due process protections in Title IX but also to express their opposition to unlawful redefinitions of terms like "sex" in federal laws.

The link to make an appointment is here:

The regulatory identification number (“RIN”) to enter is: 1870-AA16. You will receive a confirmation email through which you can complete the registration process. You will then be sent a time to make a statement. Reading a written statement is fine; you can also upload documents. Questions are possible but not typical. No deadline for registration has been announced.

Appear in your personal capacity or with your own professional affiliation. Do not represent the National Association of Scholars as NAS is already on the calendar.

Thank you for your involvement in this process!

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