Emily Yoffe on Biden’s rollback of Title IX regulations

June 27, 2022 • 1:00 pm

I keep saying that one good thing that the Trump administration did was to reform of the disciplinary procedure for sexual assault and harassment on campus as stipulated by Title IX (see posts here).  Those determined to maintain that everything that the Trump government did was bad has to argue that the DeVos reforms, which really created a fairer procedure for prosecuting these accusations, was somehow bad. But DeVos’s reforms included allowing the accused to know the charges against him (yes, usually a male), giving the accused the right to face the accuser, and with a lawyer or “helper”, and allowing a form of cross-examination. Further, in many cases, the investigator was the same person who judged whether the accused was guilty or not. That was ditched under DeVos.

Finally, the DeVos rules stipulated that guilt required not just a “preponderance of evidence” (greater than a 50% that the accused did the act) but a higher bar: “clear and convincing evidence”. That is, conviction required that it must be “highly probable or reasonably certain” that harassment or assault was done by the accused. This is conventionally interpreted to mean a likelihood of 75% or higher.

When I took a poll of what standards readers thought were best, they went with “take it to the police first”, and only then, if the accused was convicted, would they go with the “clear and convincing evidence” standard in a college investigation. In fact, since these are crimes (with the exception of some forms of what is defined as “harassment”), that’s a good idea.

Here are the results of our poll (note: this is not a scientific poll!):


And as I noted in June, one of the bad things that the Biden administration is now doing is rolling back DeVos’s reforms to the days when the rules (suggestions, really) were  codified in a “Dear Colleague” letter from Obama.

Now Emily Yoffe, whose writings I’ve found eminently sensible and who specializes in writing about Title IX and accusations of sexual misconduct, has a piece on Bari Weiss’s site agreeing that Biden’s changes are for the worse. Click to read (it’s free, but  subscribe if you read Weiss often).

A few quotes. I like this one because I’ve agreed with it (emphasis is mine):

Joe Biden has fulfilled one of the first promises he made upon becoming president. His administration has just announced a comprehensive set of regulations—701 pages worth—that will gut due-process rights for college students accused of sexual misconduct.

. . .Then Donald Trump was elected president, and Betsy DeVos, decided to reform what the Obama administration had done. In one of the most uncharacteristic acts of that chaotic presidency, DeVos went through the lengthy and burdensome process of writing actual regulations (the Obama administration had only issued “guidance”). The rules she released were, on balance, careful and thorough, providing necessary protections for the rights of both accuser and accused. I spent several years reporting on what was unfolding on campuses, and I wrote at the time that the DeVos regulations were an example of an immoral administration doing the moral thing. (See, for example, here and here.)

The DeVos rules went into effect in August of 2020, in the midst of campus covid shutdowns, so they have hardly had a chance to be tested. Now they will be struck. They will be replaced by some of the most pernicious procedures of the Obama era. (These dueling Department of Education regulations come under the aegis of Title IX, the fifty-year old federal law that prohibits sex discrimination in education.)

And so it’s back to the bad old days:

The new rules recommend a return to a “single investigator” model that was barred under the DeVos reform. This means one administrator can act as detective, prosecutor, judge, and jury on a Title IX complaint. The new rules also undo many of the procedural protections for the accused—including the right to see all the evidence, inculpatory and exculpatory, gathered against him. “It’s an evisceration of the procedural protections given to the accused,” says historian KC Johnson, co-author of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.

Under the DeVos rules, adjudication of a formal complaint required a live hearing be held that included cross examination. The Biden administration lifts this obligation. The Biden rules also call for a return to investigations initiated by third parties, even if based on rumors or misunderstandings, in which male students can be subjected to Title IX proceedings over the objection of their female partners. (Robby Soave at Reason has a good summary of the Biden proposals.)

“It’s a document that validates all of the concerns we had about due process and free speech being on the chopping block,” says Joe Cohn, legislative and policy director at The Foundation for Individual Rights and Expression.  He adds that the administration is giving schools the blessing of the Department of Education “to cut many corners that are essential for fundamental fairness.”

I can’t imagine how people could say that the new rules make the process fairer than using the DeVos rules. How can it be fair when the prosecution is identical to the jury? How can it be fair to not see all the evidence against you? How can it be fair to prohibit cross examination of the accuser? After all, this process can ruin your life; so it must be adjudicated with at least the care of a court case. (And the standard for legal guilt is even harsher: guilt beyond a reasonable doubt.)

As predicted, men found guilty under the Obama-era procedure began filing lawsuits against their colleges for “unfair treatment”. There have been around 675 of these, and many that have been adjudicated have decried the college procedures and fined the universities.  That itself should raise a red flag for Biden’s proposed regulations.

There are other things discussed in Yoffe’s piece, including Biden’s stipulations about gender identity, participation in sports, and the new industry of hiring thousands of Title IX bureaucrats, but I’ll leave you to read and judge these issues for yourself.  Here’s just one more quote:

But no matter what the new regulations demand, it is likely that at the end of the Biden administration, the president will have to concede that he failed to make a dent in accusations of sexual misconduct on campus. This won’t be because campus administrators are indifferent to mass criminal activity by male students. It will be, in large part, because of the bureaucratic expansion the Obama administration instigated. They helped establish an industry of Title IX officials, investigators, lawyers, and consultants.

. . . Then there is human nature itself. Young men and women are going to engage in sexual exploration. Sometimes it’s going to go badly. In many cases, no matter how many hundreds of pages of regulations are churned out by the federal government, turning to Title IX bureaucrats is not going to make things better.

I’m a Democrat, and I voted for Biden. But I am not going to lionize everything that his administration does. The return to the old Title IX regulations for trying cases of sexual misconduct is one of the Biden administration’s clear mistakes.

21 thoughts on “Emily Yoffe on Biden’s rollback of Title IX regulations

  1. The new rules recommend a return to a “single investigator” model that was barred under the DeVos reform. This means one administrator can act as detective, prosecutor, judge, and jury on a Title IX complaint.

    Otherwise known as “I’m Telling Mom — And You’re in TROUBLE.”

  2. As Yoffe points out, the former rules that the Biden administration is returning to “establish an industry of Title IX officials, investigators, lawyers, and consultants.” Why, this is just like the industry of officials, investigators, officials, consultants, and more officials established by the quest for ever more perfect Diversity, Equity, and Inclusion. Could the similarity of these two trends be a mere coincidence?

    Incidentally, a moment’s googling reveals another new, small cottage industry in academia: instruction in the proper writing of Diversity Statements. In real industries—those that produce something–the slang word “featherbedding” once referred to the practice of inventing sinecures for the unemployable. After the grievance study departments showed the way, the ivory towers have been busily creating new featherbeds as if there were no tomorrow—and maybe, if academia keeps going this way, there won’t be.

    1. Exactly.
      Featherbedding is an apt description, considering the exponentially increasing flocks of vultures circling what is so obviously a growth industry that is almost entirely parasitic in its construct.
      The campus is captured, held hostage by barbarians for constantly increasing payoffs, and the herds of students resembling in number the thundering Great Plains once populated by the American Bison, generate debt like a century’s worth of hurricanes spinning out of North Africa and gathering power sucked from those warm Gulf of Mexico seas. Academia lies shell-shocked, shackled, spooked, and shilled. Like any good toddler tantrum illustrates to us, Biden is taking his toys and going home.

  3. I’m wondering what kind of effect this will have on the rate of male separatism. I’m already hearing that more and more men do not want to attend college and put themselves in this kind of environment. Some of my friends have kids in high school and they are having some difficult conversations.

    The neuroatypical kids (Asperger, etc.) seem to be having the hardest time with it because a lot of interactions are based on unwritten rules and unspoken conventions that are changing all the time and require a strong ability to read nuanced social situations. I wonder how foreign students handle this, possibly bringing some of their home culture’s practices with them. The US had long been known as a low-context culture, where all rules are explicit and it is easy for people to adapt and interact; it seems like it is rapidly shifting into a high-context culture where people have to walk on eggshells all the time.


    1. What with the ubiquitous charges of “microaggression” and other “harms”, eggshell-walking may already be the leading collegiate sport. It only remains for it to be recognized as part of the Athletics Program.

    2. Talk about getting caught with your pants down. All that diversity and inclusion flushed down the toilet because of cultural nuance – that does not follow a precise and specific, predominantly North American model. Either we have a remarkably obvious two-tier system of adjudication, or we have an iron anvil to drop universally upon all comers.
      The idea that going forward, more and more young men will eschew formal higher educational environments altogether, suggests that in future, we may see the reappearance of alternative academic environments that are entirely male.
      Imagine the ensuing crapstorm over that: Establish a bastion such as this, and guess who wants in? And most especially, if it becomes apparent (as well it might) that the rigorous standards, highest quality, and especially unarguable results of single-minded and devoted academic pursuit reveal that, remove that one stick in the mud, and nature follows a course of epic success.

    3. It is true that neuroatypical kids suffer the most under overreaching Title IX policies, according to what we’ve seen at Families Advocating for Campus Equality … Also prejudiced are first generation and minority college students because many of their families cannot afford to hire lawyers to oppose the school representing complainants – this we have the respondents trying to defend themselves on their own.

  4. With respect to the status of individual rights and to the expectation of due process in the US, and with all due apologies to Stealer’s Wheel:

    “Clowns to the left of me
    Jokers to the right”

  5. … giving the accused the right to face the accuser, and with a lawyer or “helper”, … allowing a form of cross-examination.

    As John Henry Wigmore said of cross-examination in his ne plus ultra 10-volume treatise on evidence, it is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.”

  6. I was impressed at the time with the DeVos reform, and was surprised that it emerged from the Trump administration, particularly after reading so many articles decrying DeVos as a heartless moron. Because DeVos had been so thoroughly demonized by the liberal press, friends I know were preconditioned to look askance at me when I opined that her plan made a great deal of sense. I always thought that the Obama-era recommendations were too liberal. After all, the very same action-in-question could lead to punishment in one case or a meaningful relationship in another depending on the target’s reaction. That just seemed to me to create a giant sinkhole that even that the innocent could too easily fall into.

    I can’t say that I’m surprised by the Biden’s administration’s decision to roll the DeVos regulations back. This seems like a good example of ideology trumping wisdom.

    1. the Obama-era recommendations were too liberal

      hmmn … what was “liberal” about these recommendations? Leftist maybe, but not small L liberal!

      1. By “liberal” I did not mean liberal in the political sense. I meant it in terms of being too broad in scope, broad enough to put just about any amorous advance—even welcome ones—at risk. Too liberal, meaning too generous to the accuser.

  7. Biden seems to have convinced himself that he needs to pander somewhat to the Woke. Perhaps he thinks of them as a big part of his “base” without actually believing their principles, much as Trump panders to the religious while personally violating almost every religious principle. I can’t cite specifics but my impression was that he was a centrist in his earlier days.

    If I had to guess, I think we are seeing the results of his age. Not dementia but the natural decline many experience in wanting to make a mark on the world. Every action he takes seems to be defensive. He’s more worried about irritating some segment of his supporters than having his own agenda for the country. The latter seems just too much hard work for a guy his age.

  8. I agree that Biden has stuck his foot in it again, will probably cause many students to be unjustly punished – and cost the Democrats many votes in the upcoming elections. But I apparently misread the poll question; I interpreted “adjudicate only after the legal process is completed” to include findings of not guilty beyond a reasonable doubt, not just “…only…if the accused was convicted, would they go with the “clear and convincing evidence.” [I am pretty sure a college can expel, without any additional investigation, a student convicted in a court of law of rape.]

  9. Whenever I hear these discussions, it reminds me of the Twilight Zone episode “It’s a Good Life”. That is the one where the little boy, if he decided he was displeased with you, could turn you into a walking horror, or even “wish you into the cornfield”.
    Human nature dictates that anyone with such power is going to eventually misuse it, and that normal people will never be comfortable around such a person. You would start by fearing them, then grow to hate them.
    I do not want to be around someone who has the power to destroy me at will, with little or no risk to themselves. That seems to be the end product of the Obama era changes. If a girl gets mad enough at you, she can wish you right into that cornfield. The reasons she is mad at you don’t have to be legitimate, or even rational. It is also irrelevant that 99% of the women you encounter would never make such an accusation. It only takes one.

    At our company, they instituted a policy that all disciplinary hearings with employees need to have an impartial witness present. I got to be that witness a bunch of times. On more than one occasion, an entry-level employee who had problems showing up and doing the work came right out and told us that if she were punished in any way, she would accuse her supervisor of harassment and discrimination. One even demanded she be moved to a job that is normally available to those with more seniority. In those cases, I don’t think they understood why I was present. But they had nothing invested in the company, and it seemed a poor fit for them anyway. There was really no downside for them to make a false accusation. The potential accused, on the other hand, had a great deal to lose. A career built over decades. A mortgage. Kids in college.
    Incidentally, the woman who demanded the promotion “fell down the stairs” on her last day, and filed suit, of course.
    The important thing to realize is that such people exist. People who actually engage in harassment exist as well, but the truth is that behaving professionally at all times will not keep you from finding yourself in the cornfield.

    1. Very well put. Thank you for your insightful comment.
      Someone close to me had the misfortune of dating a woman who was (almost?) a psychopath (in a movie-like situation, she even said to him “I’m gonna destroy your life”). She actually managed to send him to prison for 6 months before things were cleared on appeal. A horror story and a very unlikely one but, as you say, even if 99% wouldn’t make false accusations, it only takes one…
      Due process is such a human achievement!

      1. The imbalance of power seems to be the key issue to me. I get that some people feel that it is appropriate to make up for past imbalances by imposing new ones on people who had nothing to do with those past injustices.
        It seems like universities are serving as incubators for these sorts of experiments. My eldest attended a prominent school where BLM protests made the news. The BLM kids knew that they could do pretty much anything they wanted to, with the support of the administration and much of the faculty. They regularly shut down classes or library study sessions by coming in and screaming obscenities and threats right in the faces of the mostly White and Asian med students. My kid might head to class and find out that today some walkway or pedestrian bridge is off limits to any but Black people.
        Just like with the title IX guidance, bullying by or for certain groups is conducted with the blessing of the administration, or actually funded extravagantly by them. What I have seen is that the claimed noble goals of these movements are just excuses for engaging in the basest sorts of behaviors.
        It is the opposite of the sort of character that one should expect universities to instill in the students.

  10. When an institution does something that will obviously harm a lot of people an undermine valuable principles, and the question arises “incompetent or evil?”, I tend to give them the benefit of doubt. When that institution doubles down and reinstates the policies after they had shown to lead to bad outcomes and had been corrected, the assessment shifts to “evil”. “No, we really DO want to kill due process and drag the names of innocent people through the mud. Go away now!”

  11. Nice to see Emily writing again, although one could wish for a happier subject. When she was “Dear Prudence” reading her column was one of my guilty pleasures.

Leave a Reply