Membership Action Item: Protect Title IX Due Process

Teresa R. Manning

As expected, the Biden Administration proposed a new rule to implement Title IX, the federal ban on sex discrimination in federally funded education that is now used to address campus sexual misconduct.  The proposal would undo fairness guarantees put in place by Trump Education Secretary Betsy DeVos. For example, it would remove live hearings in favor of “individual meetings” held by Title IX staff—the very people who made Title IX a mess in the first place.

The proposed rule represents a major backward step, except now there’s the backstop of case law: Since Title IX became a campus weaponhundreds of courts have found that schools act illegally when they deny due process to those accused. For example, in a court opinion against Cornell University just last month, Judge Jose Carbranes described Cornell’s conduct as “brutish overreach ... at the expense of simple fairness.”

Already, state attorneys general are taking the rule to court for its due process deficiencies and also its redefinition of “sex” to include gender ideology and same-sex orientation, yet more leftwing agency activism.

NAS members should also do their part: The Administrative Procedures Act governs this rule-making process and allows public input after a regulation has been published in the Federal Register. The proposed Title IX rule was formally published on July 12, 2022, and the comment period lasts until September 12, 2022.

We urge all NAS members to participate in this process. An extensive record of objections buys time and helps those mounting legal challenges. If the agency does not address comments made, it is said to be acting arbitrarily and therefore illegally. 

More time also means more opportunity to complain to Congress about what Title IX has become. Yes to its original promise of equal opportunity in education. But no to a weapon in campus sex wars that flouts the due process of law.

To submit a public comment, go here and click the green button on the righthand side. For suggestions on format and tone, click here.

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