Title IX set to revert to old unfair system

August 30, 2022 • 9:20 am

Title IX is a federal statute that prohibits sex-based discrimination in education or activities in schools that receive federal assistance. That includes nearly all schools, including private ones that benefit from federal grant money. Sexual harassment or a climate inimical to members of one sex are violations of Title IX, and properly so. But it’s also been used to weaken the civil rights of students accused of some violations.

On June 3 I noted, based on several reports, that the Biden administration was preparing to roll back some of the safeguards to due process for adjudicating claims of sexual assault or harassment by colleges. The standards for such adjudication were set out by the Obama administration in a 2011 “Dear colleague” letter to various government-aided colleges, and those standards weren’t fair in a number of ways I outlined in my post above. Those who were accused weren’t allowed lawyers, weren’t allowed to face or cross-examine the accuser, had no right to a live hearing or even see the evidence against them, and permitted a single individual to both investigate the accusation and decide on a verdict. That is, one college employee could be both the cops and the jury.

Worst of all, the finding of “guilty” under the Obama regulations (soon to be reinstated) were based on a “preponderance of the evidence”, i.e. a judgment call. Here are the degrees of “certainty” used in both courts and in Obama’s Title IX regulations, taken from my earlier post.

  • 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 harassment. This means that it is more likely that not (likelihood > 50 %) that the offense occurred.

Civil cases require a the third criterion: one is culpable if accused of something more likely to have happened than not. But criminal cases, of course, require criterion #1: guilt beyond a reasonable doubt. Since accusations of harassment in colleges can and have led to expulsion of students and permanent blots on their records, I’d favor either criterion #1 or #2, but certainly not criterion #3.

Yet that is what was used in the Obama regulations. In what I’ve always said is one of the few good things done by the Trump administration, Education Secretary Betsy DeVos replaced Obama’s regulations with ones I see as fairer, allowing cross-examination, lawyers, “judges” separate from investigators, and reversion to a “clear and convincing evidence” standard (#2 above).

In fact, readers agreed with me that if there is a charge of assault or harassment that is a violation of the law, it should go to the courts first, and only if the legal system finds an accused person guilty should colleges then decide what to do. Below are the results of an admittedly unscientific poll that I took of the readers. The results are shown below and were reported in another post (see also here, here and here for my other thoughts of the Title IX changes). As you see, nearly 80% of readers favored a “courts-first” approach, and then, if the accused were found guilty, the college could adjudicate. But even for those in-house judgments, readers favored the “clear and convincing” evidence standard—the DeVos standard:


In June, the Biden administration proposed ditching the DeVos standards and largely reverting to the Obama ones. The document with Biden’s proposed changes is here, and is 701 pages long. I’ve only skimmed it, so I’ll take the word of the Foundation for Individual Rights and Expression (FIRE), set out in a post objecting to Biden’s proposal, as to what’s in the behemoth document. FIRE doesn’t like the changes, and if their characterization is correct, I agree with them.

You can read their objections in this short post (click on the screenshot):

The old Obama standards led, as will the new ones, to a spate of lawsuits—over 600, according to FIRE, with 239 listed here—brought by accused and college-convicted students claiming that their civil rights had been violated by universities. Many of those suits were won by the plaintiffs. And those victories cost colleges big time.

The new Biden standards are a recipe for similar lawsuits and for huge payments by universities. Behind eroding the rights of students, that’s the second reason not to favor the proposed changes.

According to the FIRE article, the proposed changes “roll back student rights” in these ways.

  • eliminating students’ right to a live hearing;
  • eliminating the right to cross-examination;
  • weakening students’ right to active legal representation;
  • allowing a single campus bureaucrat to serve as judge and jury;
  • rejecting the Supreme Court’s definition of sexual harassment in favor of a definition that threatens free speech rights;
  • requiring colleges and universities to use the weak “preponderance of the evidence” standard to determine guilt, unless they use a higher standard for other alleged misconduct.

Fire doesn’t mention the issue of transsexual women (or men) competing against biological women (or men) in sports, probably because FIRE is concerned with free speech and expression, and sports does’t fall under that rubric. But sports participation remains an issue of concern, especially if, as I recall, the Biden construal of “gender” is independent of whether there’s been any medical intervention. It will be—and again, I may be wrong—purely a matter of which sex you identify with.

Although the ACLU and other “liberal” organizations were against the DeVos changes, we all know that the ACLU, like the Southern Poverty Law Center, now favor weakening civil rights if that helps what they see as a beleaguered minority (in this case, accusers, often seen as “survivors”). But it helps nobody to erode standards of justice that apply to everyone.

FIRE is of course against the Biden-esque changes, and has filed an objection. (There’s still time for people to weigh in on the regulations, as the article below notes.) A few excerpts from the FIRE post:

“This new proposal is a non-starter for student and faculty rights,” said FIRE Legislative and Policy Director Joe Cohn. “These regulations eliminate the right to live hearings, eliminate the right to cross-examination, weaken protections for free speech, and authorize schools to deny students the right to have the active assistance of a lawyer. That’s a recipe for constitutional violations that courts are unlikely to ignore.”

“The current Title IX regulations are one of the biggest victories for student rights in memory. But as I predicted when they went into effect in 2020, our work is not over,” said FIRE Executive Director Robert Shibley. “FIRE will fight to ensure all students are afforded the free speech and due process rights that they have every right to expect as Americans.”

. . . . The regulations proposed today, if allowed to go into effect in their current form, would undo many of the victories for student rights won in 2020. However, despite their hostility toward fair procedures, even today’s proposed regulations do not entirely roll back hard-won protections for students. Institutions are still required to provide an express presumption of innocence, which shockingly was neither required nor common until the 2020 regulations. Schools are also still required to turn over exculpatory evidence they may possess (albeit now upon request) — another long-overdue improvement made in the 2020 regulations.

Now that was in early June, but the regulations appear to be the same today. And so we have a new multi-authored article at Heterodox STEM, a group of scientists who are, well, heterodox, which in effect means “anti-woke”. Click on the screenshot to read their piece.

Apparently the Biden rules have converted Title IX, intended to protect the rights of both sexes in colleges, and give everyone equal opportunities, to “gender”.  That doesn’t bother me much except for those cases where the notion of “biological women” becomes important, as in sports, rape counseling, and the like. But those aren’t issues as large as that of how accusations of harassment and assault are handled.

The authors of the Heterdox STEM paper are worried about due process, of course, but also have a few concerns that I don’t think are substantive:

Freedom of Speech: The redefinition of sex in the proposed Title IX revisions would threaten the academic freedom of researchers, faculty, and students who oppose the redefinition of gender and sex. It will also make criticism of aspects of Diversity Equity and Inclusion (DEI) mandates involving gender and sex more difficult.

I doubt the new regulations can override the First Amendment, so if you criticize DEI or the change of “sex” to “gender”, or what one defines as gender, that would still be legal, though it may lead to charges of harassment if a professor expresses these opinions in the classroom. But the First Amendment has always been weaker inside classrooms than outside of them: I can espouse creationism as a private individual but cannot teach it in class. What these regulations may do is not so much change freedom of speech as to “chill” speech by normalizing ways of thought that become more difficult to oppose.

This one I think is a non-problem:

Freedom of Religion: There is a binary interpretation of sex in many religious texts such as Genesis 5:2, which reads, “Male and female created He them.”  If enacted, the proposed revisions to Title IX will force believers to affirm non-binary claims regarding gender and sex against their conscience. Therefore, Title IX would promote a violation of people’s First Amendment guarantee of freedom of religion.

I cannot imagine a case in which a student could claim that enforcement of the new guidelines could infringe on one’s freedom of religion. I know of no religion that, for example, dictates that one use certain pronouns.  And I can’t see how Title IX, in practice, could “force believers to affirm non-binary claims regarding gender and sex against their conscience.”

This also goes for another objection (there are seven in the article):

Scientific Integrity: There are only two gametes in mammals (including humans): eggs and sperm. Mammals are sexually dimorphic, and sex is binary.

Well, yes, I agree with this definition of “sex”, and the fact that sex is binary in humans with a miniscule percentage of exceptions, but I’m not sure how the Biden regulations would infringe on this. Perhaps professors who use this construal of sex in class could be taken to task, but I can’t imagine anyone saying, “Biologists define sex in this way. . .  ” could get them into trouble.

Nevertheless, there are a whole bunch of ramifications of the new regulations that are worrisome. If you want to comment on any aspect of the new document, you can go go to the Federal Register site to express your views. Comments are due by midnight on September 12.

8 thoughts on “Title IX set to revert to old unfair system

  1. Biden himself was accused recently of sexual harassment perpetrated in the basement of the Capitol. Under the proposed guidelines and given how university DEI offices operate, he would have been found “guilty.”

  2. In principle I can certainly understand the arguments for retaining the Trump era safeguards. Those accused of crimes must have recourse to a proper defense.

    At the same time, there are certain crimes that are almost always perpretrated in private, in secret, behind closed doors. In other words, there will be, in many or most cases, no way to demonstrate the perpetrator’s guilt. And obviously, sexual predators know this perfectly well and exploit the fact.

    So, yes, those accused of crimes must have recourse to a proper defense, but should not a victim of a crime have recourse to justice, even if that crime occurred in private?

    This leads to an extremely intractable legal and ethical situation. If the laws are such that one can only convict the accused if there is clear evidence against him (or, much more rarely, her), then sexual criminals will almost never be held to account. If, on the other hand, the laws are such that a court or other legal body generally believes the accuser, then it opens the system up to the occasional false accusation and false conviction.

    So, where should the balance be struck? I surely do not have the answer, but I can accept a shift, to some reasonable degree, from the historical norm in which sexual crimes only extremely rarely end in a conviction, to a situation where more sexual crimes lead to prosecutions and accountability, even at the risk of occasional abuses.

    1. Students accuse teachers of all sorts of things. Some of these are valid, but many are not. I cannot countenance a system that ignores the right to a vigorous defense and the principle of innocent until proven guilty. Perhaps, I have seen too many abuses by OEI offices to afford them the benefit of good faith.

  3. Re. “I cannot countenance a system that ignores the right to a vigorous defense and the principle of innocent until proven guilty.”

    Indeed, like I said, I feel the same. Simultaneously, I cannot countenance the fact that sexual predators can almost always get off scot free because they know that if they do it cleverly enough, no one can prove anything. And their victims basically just have to suck it up for the most part.

    Thus the intractable situation in which we find ourselves. And the victims are pretty fucking tired of it, understandably.

    1. But which of the six bullet points Jerry highlights do you find appealing in the new directives? Which do you think would redress the balance in favour of the complainant and nail more of those sleazy predators? At the risk of only “occasional” abuses, of course. None of which would happen to you, also of course.

      1. I’ll be happy to address these legitimate questions — though, like I said, I do not claim to have any good answer — if you apologize for being so snotty (yes, of course it could happen to me, don’t be ridiculous).

        And what did you mean by the phrase “algonquin-worthy”, which you used in a comment a few days ago (Aug. 26)?

  4. Hi Jerry, it is such an honor that you are commenting in our article in substack. Thank you so much for encouraging people to submit comments against the proposed changes. I agree that the due process changes are very concerning. I think your viewpoint of what the implications are for people that do not want affirm the new gender ideology is not realistic because maybe you have not experienced what is happening. Currently there are mandatory trainings and forms that require affirmation of gender ideology at Universities (compelled speech). Just imagine with the change of due process how easy it would be to get accused of a title IX violation just because of believing that sex is binary. The changes would make it easier for administrators to take action against people with these beliefs. You agree that it would chill speech, thank you, but I think it might go beyond that. The implications for women’s rights and privacy are also important and you do recognize that, thank you.
    Thank you

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