Now is an ideal time: With most students off campus due to the coronavirus crisis, Title IX administrators have time to revise policies to comply with the new regulations and return to Supreme Court standards of sex discrimination.
NAS commends Secretary DeVos for her attention to Title IX, the federal law which bans sex discrimination at schools receiving federal funds.
We especially applaud the Secretary for rescinding Obama-era directives, which mandated recipient schools create Title IX bureaucracies to process sexual misconduct complaints. These offices had no courtroom experience, which resulted in miscarriages of justice for complainants and respondents alike. Most egregious were the due process violations for those accused of misconduct: Many were denied the presumption of innocence, forbidden from responding to allegations, and even summarily removed from campus, interrupting academic and career paths.
Title IX Offices are now known as both kangaroo courts and the campus sex police. Secretary DeVos is right to fix this broken system.
What’s more, in November of 2018, Secretary DeVos proceeded lawfully and respectfully by proposing new regulations to implement Title IX, unlike the controversial guidance instruments of her predecessors. All those affected have had time to participate in the process and comment on the proposals, both during the public comment period to the Office of Civil Rights directly and more recently to the Office of Management and Budget.
It is now time to issue these long-awaited regulations.
In fact, the time is ideal: With most students off campus due to the coronavirus crisis, Title IX administrators have time to revise their policies to comply with the new regulations and return to Supreme Court standards of sex discrimination. If the regulations come out now, chances are that most schools will be able to have revised policies in place by next semester, the start of the new academic year.
Many schools have probably already reviewed policies in anticipation of the new regulations; one hopes they paid particular attention to definitions of the type of conduct that qualifies as discrimination under Title IX. Many school definitions have become overly broad and vague, giving Title IX offices more power than Supreme Court precedent allows – for example, some schools say that any sexual misconduct is ipso facto Title IX discrimination. That’s wrong. Sexual misconduct is a crime and belongs in the criminal justice system, not in campus Title IX offices.
Sexual misconduct becomes discriminatory and therefore triggers Title IX only when it denies educational access. The proposed regulations and the Supreme Court agree on this and school policies must reflect that.
School policies should also now make explicit basic due process protections for those accused of discrimination, including that they are presumed innocent, have a right to know and respond to charges against them, and that they have a right to question witnesses and accusers, through counsel if necessary.
During this downtime, Title IX Offices can also turn their attention to women-only or girls-only programs on their campuses, which are illegal under Title IX and which must be opened to men and boys. For many years now, female students and graduates have outnumbered males. And yet, schools continue to sponsor illegal, single-sex initiatives for women-only – scholarships, faculty awards, summer camps, business programs, and even women’s lounges or women-only gym hours. These all violate Title IX and should keep Title IX Offices busy quite apart from the contentious area of sexual misconduct.