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Op-Ed: Biden shouldn’t mess with Title IX improvements on sexual misconduct

DeVos had it right and Cardona should leave it be. (AP; Pool)

The four years of Donald Trump’s presidency birthed a wealth of bad, sometimes cruel new federal policies. But one potentially positive Trump change, new regulations governing how schools and universities investigate and report cases of campus sexual misconduct, may end up shredded by the Biden administration before it’s had a chance to get off the ground.

Monday, Biden signed an executive order directing newly-confirmed Department of Education Secretary Miguel Cardona to review all DOE policies and consider whether any should be suspended, revised or rescinded, if they don’t comport with the DOE’s mission to guarantee students safe educational environments free from sexual discrimination and harassment.

That order took aim at Title IX regulations formalized and implemented by Trump’s Education Secretary Betsy DeVos last year, which gave students accused of sexual misconduct the right to cross-examine accusers during formal campus proceedings, access to evidence and legal counsel if they sought it, and narrowed the definition of sexual harassment to conduct “so severe, pervasive and objectively offensive” that it would prevent students from continuing their education. That standard is too strict for workplaces, but rightly shields free speech on college campuses.

Critics argued that DeVos’s regulations privileged rights of alleged harassers or assaulters above the long-ignored rights of victims, who’ve faced decades of legal and institutional obstacles to reporting sexual harassment and misconduct. Critics argue too that false reports of sexual assault are extremely rare, suggesting focusing on rights of the accused gives outsize attention to an overblown problem — that of false or inaccurate accusations.

Even if false accusations are exceedingly rare, administering justice for sexual assault victims shouldn’t be a zero sum game that turns every person accused of misconduct into collateral damage, regardless of their guilt. Safeguarding due process, a principle so dear it’s enshrined in the Constitution, isn’t chauvinism. Biden and Cardona’s revisions, revocations and rescissions of the Trump-era Title IX changes should retain due process protections for the accused.

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