The Biden administration has released the long-awaited rewrite of Title IX’s implementing regulations, which has generated controversy due to its revised definition of sexual assault and protections for transgender people.
However, a lesser-discussed aspect of the regulations is its attempt to entice campus administrators to prioritize administrative efficiency over due process and fairness in handling sexual misconduct cases. This trade-off is a bad deal for all involved, as it undermines the cornerstone of our legal system and the robust fact-finding that due process ensures.
Title IX plays a crucial role in our education system, prohibiting sex-based discrimination in all federally funded education programs and activities. Institutions that accept federal funds are obligated to address claims of sex discrimination promptly and effectively or risk losing their funding.
New Title IX rules raise concerns for the accused (Credits: Princeton Legal Journal – Princeton University)
While institutions have the option to implement more rigorous due process standards, the revised regulations allow them to provide minimal procedural protections to students accused of sexual misconduct.
College disciplinary proceedings carry significant weight, with students or staff found guilty facing potential expulsion, diploma revocation, and other life-altering consequences.
This underscores the gravity of these proceedings and the need for careful consideration. Three particular changes stand out as most threatening to unbiased fact-finding and fair decision-making: adopting the single investigator mode, eliminating live adversarial hearings, and lowering the default standard of proof.
The single-investigator model, where a single official serves as investigator, prosecutor, and ultimate decision-maker, poses a significant risk to accused students.
This model, paired with the elimination of live hearings and the right to cross-examination, will likely attract constitutional challenges, particularly for state-run schools. The adversarial process has well-established benefits, including the discovery of truth through cross-examination.
A Wave of Litigation’ Likely as Proposed Title IX Changes Roll Back Due Process Rights at Universities (Credits: Georgia Recorder)
The revised regulations also presume a lower standard of proof, “preponderance of the evidence,” rather than the more demanding “clear and convincing” standard. This change should give administrators pause, as it may lead to less defensible and integrity-filled outcomes. The higher the standard of proof, the more trustworthy the outcome.
Colleges and universities should be wary of accepting the invitation to trade due process for administrative efficiency. History teaches us that this trade-off is usually a bad deal for all involved.
The accused deserve accurate and trustworthy fact-finding, victims deserve fair and just guilt determinations, and society deserves institutions that acknowledge the gravity of their truth-seeking mission and recognize the immense consequences of getting it wrong. The revised Title IX regulations’ false promise of efficiency threatens to ensure that all are left wanting.
