I’ve written before that one of the few good things that the Trump administration did (probably actually the doing of Betsy DeVos, the Secretary of Education, was to change the Title IX standards to create a fairer process when colleges adjudicate sexual harassment cases. (You can read my posts on that here, here, here, and here.) Title IX, you may recall, is a federal law that prohibits educational institutions partly funded by the government from discriminating on the basis of sex. It’s been used as the basis of sexual harassment cases, and has also gone a long way towards supporting women’s sports.
Here’s the original wording signed into law by Nixon:
“No person in the United States shall, based on sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Some of DeVos’s salubrious changes were the elevation of the “preponderance of evidence” standard in sexual assault and harassment standards (more than a 50% probability it happened) to a “clear and convincing evidence” standard. The courts, of course, use a “beyond a reasonable doubt” standard, which is even higher, but at least the DeVos alteration raised the bar for finding a student guilty—which, after all, could result in students being thrown out of college and marring the rest of their lives. I don’t think “it’s more likely that the accusation is correct than it’s not” is a high enough bar for something so serious.
Here are the various degrees of certainty (civil suits in court require “clear and convincing evidence”).
- Conviction requires guilt “beyond a reasonable doubt”, which of course means that the bar is very high for conviction.
- Conviction requires “clear and convincing evidence”, that is, it must be “highly probable or reasonably certain” that harassment or assault occurred. This is conventionally interpreted to mean a likelihood of 75% or higher that the assault took place.
- Conviction requires a “preponderance of the evidence” for assault or hasassment. This means that it is more likely that not (likelihood > 50 %) that the offense occurred.
In fact, a huge majority of readers, when polled, favored adjudication of the claims by the courts, and only if an accused was convicted would a college adjudicate the case:
Well, that’s not a scientific poll, but so be it. Other changes were mandated by DeVos as well, like who the investigating agent would be (previously it was often the same person who rendered judgement in a college!), whether an accused student could have a lawyer or advisor present (previously no), and whether the accuser would be required to face the accused and answer questions (previously no, but yes under DeVos).
I’m not the only one who favored the changes: many liberals and feminists did, as well as liberal professors (the ACLU waffled). In my view, the changes made the process fairer in cases that had very serious implications.
Now, however, according to an op-ed in the Wall Street Journal and an article from April 28’s Inside Higher Ed, the Biden Administration is preparing to roll back the DeVos changes, and also to alter Title IX in other ways, giving gender identity the same protection that sex had.
Here’s what the WSJ says will probably change (no firm regulation has yet been floated):
a.) The standards for guilty may revert back to “preponderance of evidence’
b.) “Sex” in the Title IX regulations will now be construed as “gender” and “gender identity”. Since the Biden administration so far construes “gender identity” as having nothing to do with surgery or medical treatment, “gender identity” may well be “whatever you claim to be.” As the WSJ says, in its usual Chicken Little scenario:
This would require every educational institution that receives federal money to allow biological men into women’s locker rooms, sororities and other previously female-only spaces. Any school that attempts to prevent the next Lia Thomas from competing on a women’s team will have its federal funding snapped back—under the same law that once required schools to increase athletic opportunities for women and girls.
I don’t care so much about bathrooms or locker rooms, but I do care about sports and the way sexual harassment/assault claims are judged. If “gender identity” is used the way that Biden’s administration uses it now, there will be big trouble ahead, and probably a Supreme Court case in the future.
c.) Parents won’t be able to exempt their children from learning about “choosing one’s sex”, and schools will now be empowered “to transition children without receiving parental consent or even informing parents.” I don’t care much about the lesson plans (I don’t know what they’d involve), but I do think parents should to be informed if a minor child requests either a formal change of gender or counseling for changing gender.
Under its most lax construal, “gender” is “whatever identity you want to assume.” If that’s what Biden is going to insert into Title IX, he’s in for trouble, not only in the courts (over 200 college “preponderance of evidence”-based convictions for sexual assault have already been overturned in the courts), but also politically. Imagine what Republicans will make of this.
Inside Higher Ed reports that Biden’s Title IX changes were to be enacted in April but were put off until at lest May. I don’t think they’ve yet been signed into law. IHE says this about the history of the regulation:
The draft rule represents a rewrite of one proffered by former Education Secretary Betsy DeVos, which took effect in August 2020. The DeVos rule created a judiciary-like method of evaluating reports of sexual violence on college campuses, notably allowing an accused student and their accuser to cross-examine each other through an adviser of their choosing.
It also shrank the scope of cases colleges need to investigate, prompting ire from sexual assualt survivors and their advocates who thought the regulation licensed colleges to disregard these problems.
DeVos, however, in issuing the rule responded to a chorus of accusations from due process activists. They argued the Education Department for years had pressured colleges to find accused students responsible for sexual assaults, under the threat of revoking institutions’ funding for not complying with Title IX regulations. This in turn disregarded accused students’ rights, they said.
This is where DeVos was right, I think. You don’t want to convict someone without sufficient evidence (or even try them until after the local courts have found a person guilty) just to meet a quota or the demands of people on social media. More history:
The debate broke out in full after the Obama administration put new emphasis on sexual violence prevention, issuing guidance in 2011 and 2014 that directed how institutons should address these issues.
President Joe Biden is expected to take up that mantle. He was deeply involved as vice president with the former administration’s Title IX sexual misconduct response. [JAC: The one DeVos changed.]
The Education Department expects to publish its draft rule in the Federal Register next month, which at that point will start a public comment period, typically 60 days. The agency may make changes based on feedback, and a rule will then be finalized.
And a bit about the new regulations:
Reportedly, the new draft regulation will protect gay and transgender students from sex-based discrimination. That idea drew criticism from 15 Republican state attorneys general who threatened to sue the Biden administration over the forthcoming rule. The attorneys general urged the White House to halt the regulatory process for issuing a new rule.
Sexual assault survivor groups last August urged the Biden administration to expedite changes under Title IX and publish a draft rule by Oct. 1, 2021 — a call the Education Department did not heed.
This is a different take from the WSJ’s, but of course we’re going on “reported” regulations. Gay and transgender students should, of course, be protected from discrimination, but we don’t know what Biden’s new rule is going to say.
It’s unwise to kvetch too much based on rumors and unsubstantiated reports, so all I’ll say is that if Biden tries to insert “sex, gender, and gender identity” into Title IX in place of “sex”, without being more specific, he’ll be opening up a can of worms.