Biden’s “Comprehensive Review” of Title IX

A Stealth Attempt to Gut Due Process

National Association of Scholars

On Tuesday the Biden Administration’s Education Department followed up on Executive Order 14021 with a letter announcing public hearings as part of a “comprehensive review” of agency action on Title IX—including review of the most recent Rule protecting due process.

Title IX is the federal law banning sex discrimination at schools receiving federal funds. Since 2011, it has been used to address sexual misconduct on campus, with Title IX officials often railroading accused students by presuming guilt and violating other basic due process rights so schools appear “tough” on sexual assault.

“The new Title IX Rule took 3 years to develop and involved over 124,000 public comments. It took effect hardly 6 months ago. What is there to review?” asks Teresa R. Manning, NAS Policy Director. “There’s no record yet of how the Rule works. It hasn’t been given a chance. As a result, we think this so-called comprehensive review is a stealth attempt to gut the due process protection it provides.”

The new Title IX Rule balanced the rights of Title IX complainants and respondents by requiring supportive measures for anyone alleging sexual misconduct but also due process protections for those accused, including the presumption of innocence, the right to see evidence and the right to question witnesses and accusers.

“The new Rule represents an enormous amount of time and work and should be given a chance to succeed. Any review now is premature and wasteful: We just had a three-year review of Title IX practice.” Manning continued: “So this looks more like cover for a decision that’s already been made to roll back due process protection and that’s wrong.”

NAS released a report on Title IX last year called, Dear Colleague: The Weaponization of Title IX. It found schools unqualified to adjudicate serious sexual misconduct such as assault. Only one out of 57 officials surveyed, for example, had relevant legal experience dealing with due process issues.

NAS also filed a friend-of-court brief in support of the new Rule when it was challenged in the United States District Court in the District of Columbia. The Rule has been upheld as lawful by every court to review it.

Photo by Gage Skidmore // From Flickr // CC-BY-SA 2.0

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