Biden’s Pledge to Repeal DeVos’s Title IX Fix Is Misguided and Hypocritical

President-elect Joe Biden delivers a pre-Thanksgiving speech at his transition headquarters in Wilmington, Del., November 25, 2020. (Joshua Roberts/Reuters)

If due process and the presumption of innocence are good enough for the president-elect, surely they’re good enough for America’s colleges and universities.

Given the likelihood that it’ll be difficult for the Biden administration to move big-ticket items on Capitol Hill, progressives are eagerly searching for ways that the president-elect can unilaterally change policy. Vox, for example, has sketched “10 Enormously Consequential Things Biden Can Do Without the Senate.” One Guardian op-ed offered the fetching headline, “Here Are 277 Policies That Biden Can Enact on Day One — Without Congress.”

While they couldn’t quite get to 277, the American Council on Education and the various outfits that constitute the higher-education blob recently joined with the progressive base to urge a series of education-specific executive actions. High on their wish list is for Biden to reverse the Trump administration’s Title IX regulations governing sexual misconduct in higher education. Biden, for his part, has promised a “quick end” to the Trump regulations, with his campaign policy director pledging that a Biden administration would “return to and then build on” Obama-era guidance.

That would be a tragic mistake. Under Title IX, Washington has come to require that the nation’s colleges operate quasi-judicial court systems to try sexual misconduct cases. These campus courts can’t apply criminal penalties but they can suspend or expel students, permanently damage reputations, and ruin young lives.

In 2011, via a “Dear Colleague” letter that skirted the formal federal-rulemaking process, the Obama Department of Education issued new Title IX guidance that violated fundamental elements of due process. For instance, the Obama administration pressured colleges to use a “single-investigator” model, in which a single Title IX officer could serve as investigator, prosecutor, judge, and jury. The Obama guidance instructed colleges to use a “preponderance of the evidence” standard (defendants were to be judged guilty if there was better than a 50–50 chance that allegations were true), strongly discouraged cross-examination, and ditched the notion of double jeopardy by permitting accusers to appeal an unsatisfactory verdict.

MORE IN TITLE IX To little surprise, these campus kangaroo courts became famous for bungling cases. After Obama’s 2011 edict, the number of lawsuits alleging campus violations of due process rights exploded ten-fold, with federal and state courts ruling against colleges and universities over half the time.

This was the mess that Secretary of Education Betsy DeVos has cleaned up. The final guidelines she issued in 2020, after two years of rulemaking that scrupulously complied with the Administrative Procedure Act, were designed to restore due process while showing proper regard for the rights of all concerned. DeVos allowed colleges to return to the more sensible standard of “clear and convincing” evidence, and required that the same evidentiary standard be applied to both faculty and student misconduct.

DeVos prohibited the use of the single-investigator model, required a live hearing so that the accused could present and challenge evidence, and mandated that colleges allow representatives of the accused to question the accuser. To help ensure the well-being of alleged victims, DeVos also required that campus courts be trained to use the “rape-shield” laws (common in criminal courts) which protect accusers from unnecessary and embarrassing questions. These basic protections are what Biden is pledging a “quick end” to.

Now, it’s not clear whether a “quick end” is even legally possible. Unless Congress legislates, Biden’s secretary of education would have to follow the same multi-year formal rulemaking process as DeVos. The Biden administration could, of course, use a “Dear Colleague” letter to instruct universities to ignore the DeVos regulations — confident in the support of the higher-ed lobby and mainstream media. But that route would expose colleges and universities to legal jeopardy, since students could sue them for failing to comply with the DeVos rules (which are currently the law of the land).

More fundamentally, it’s neither principled nor desirable for Biden to seek to undo DeVos’s handiwork on Title IX. Biden, of all people, should recognize and appreciate this. After all, if Biden had been subjected to the kind of campus kangaroo court process he’s promising to restore, he almost assuredly would have been found guilty of sexual assault based on the allegations that his former staffer Tara Reade made earlier this year.

Reade alleged that in 1993 Biden pinned her to a wall, reached under her clothing, and sexually assaulted her. Biden has vehemently denied the allegation, noting that Reade had changed her story (until 2020, Reade only alleged Biden harassed her, not that he assaulted her). Biden also cited the lack of supporting evidence; he asserted that “not one [former staffer] corroborated her allegations in any way.” In a court of law, those responses would hold considerable sway.

Not so in the campus courts produced by Biden’s preferred Title IX rules. Indeed, under the “trauma-informed” lens favored on campus, a changing story can be taken as evidence that allegations are true. The University of Texas at Austin’s training materials explain, for instance, that “trauma victims often omit, exaggerate, or make up information when trying to make sense of what happened to them.” Moreover, under the Obama regulations, a lack of corroborating evidence wasn’t necessarily an issue: Numerous students were expelled based on allegations far less convincing than Reade’s.

Keep in mind that when Biden was first accused in March, a host of prominent Democrats and media figures cautioned against a rush to judgment. They insisted that the charges needed to be carefully adjudicated. House speaker Nancy Pelosi allowed that women should be heard, but explained that “there is also due process, and the fact that Joe Biden is Joe Biden.” It’s bizarre to now see Democrats urging the president-elect to uproot the very due process rights they thought so essential just a few months ago.

And it’s troubling to contemplate the president-elect denying to vulnerable 19-year-olds the same safeguards that he so recently demanded for himself. There shouldn’t be two sets of rules — one for the powerful and one for everyone else. If due process and the presumption of innocence are good enough for the president-elect, surely they’re good enough for America’s colleges and universities.

Frederick M. Hess is the director of education policy studies at the American Enterprise Institute. RJ Martin is the program manager of education at AEI.

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