Rolling Back Title IX Due Process Protections is Wrong

National Association of Scholars

New York, NY, March 8, 2021 — Today, President Biden is directing the Education Department to review, and possibly rescind, former Education Secretary Betsy DeVos’s Title IX Rule, issued last May. The Rule guarantees supportive measures for complainants of sexual misconduct while also protecting the due process rights of those accused, including the presumption of innocence and the right to see any evidence.

"Any rollback of the Rule is wrong," says National Association of Scholars (NAS) Policy Director Teresa R. Manning, author of last year’s NAS report, Dear Colleague: The Weaponization of Title IX.

“NAS denounces any criminality on campus, including sex crimes. But most Title IX sexual misconduct cases are far from this. Instead, they represent misunderstandings and mixed signals regarding consent and usually involve alcohol, regret, and fuzzy memories. Unfortunately, students are encouraged, in situations like this, to file discrimination complaints with the Title IX office, where ideological staff stand ready to railroad accused students.”

Manning points to the findings of last year’s NAS Report, Dear Colleague: “The vast majority of Title IX officials have no practical legal experience and therefore have no appreciation for basic, longstanding due process rights such as the right to question witnesses and to cross-examine accusers.” The report found that only one out of 57 Title IX staff had courtroom experience, for example, most come from university administration and women’s studies or gender studies programs. “They desperately need the new Title IX Rule to rein in their ideological excesses,” Manning said.

“What's more, the Rule comports with all the case law in this area: To date, more than 600 lawsuits have been filed by wrongly accused students complaining of campus due process violations; courts have overwhelmingly upheld due process rights. Any attempt to roll back these protections will, therefore, hit a brick wall,” Manning said, echoing her article, The Due Process Brick Wall, published last month. “Even more important, courts have found that these protections are not just part of the DeVos Rule but are instead part of our larger, legal heritage, deriving from many sources, including state contract law and state administrative codes as well as federal constitutional jurisprudence.”

Finally, “every court to look at the new Rule has found it to be sound and fair. Are the Biden people going to defy all this case law to return to the bad old days of railroading students?”

“Right now, America needs schools to open and young people to learn. Attacking due process to indulge feminist ideologues is always wrong, but it's especially obnoxious now. The Biden people should focus on education and educational opportunity, not undermining fundamental fairness.”

For more information on this topic, please contact Teresa R. Manning, NAS Policy Director, at [email protected].

Image: Sora Shimazaki, Public Domain

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