An education nonprofit is warning the Biden administration’s commitment to rolling back Title IX’s due process protections for individuals accused of sexual harassment on college campuses would erase the progress enacted under the Trump administration.
In a recent report, the nonprofit Foundation for Individual Rights in Education (FIRE) stated that the Trump-era Title IX regulations “bolstered due process at colleges,” but that those changes have the potential to be undone with the confirmation of Biden’s nominee Catherine Lhamon to be DOE’s assistant secretary for civil rights.
Title IX is the 1972 law barring discrimination based on sex in education and has been the center of heated debate over penalties for students accused of sexual misconduct at universities across the U.S.
Former Education Secretary Betsy DeVos enacted new Title IX regulations in 2020 designed to secure the due process rights of students by ensuring that colleges presume a student accused of sexual harassment or assault is innocent until proven guilty. The Biden administration has signaled that it will roll back these regulations in the near future.
“We were finally seeing student rights moving in the right direction, but Catherine Lhamon’s nomination just shows how threatened the progress we’ve made is,” said FIRE Executive Director Robert Shibley in a statement.
“If confirmed, Lhamon’s history and rhetoric indicate that she will put her thumb on the scale of justice — ripping away fundamental rights and encouraging a patently unfair shadow justice system that deprives students of their right to due process.”
FIRE’s report examined the policies at 53 top national colleges in order to understand how the “procedural safeguards” in place at colleges impacted students who were accused of violating a university’s policy.
The results revealed that for 85% of schools included in the report, “Title IX sexual misconduct policies scored noticeably higher than other policies, demonstrating the positive effect of the regulations on due process in Title IX cases.”
However, FIRE accused universities of “taking every opportunity to avoid providing due process across the board,” and implementing confusing new processes that would bar some accused students from benefiting from the Trump-era regulations.
“America’s top universities are offering rock-bottom due process protections. That’s why lawmakers and the courts must require a single, clear, and fair process for adjudicating campus misconduct once and for all,” said FIRE program officer Ryan Ansloan.
“Nearly two-thirds (62.2%) of America’s top 53 universities do not explicitly guarantee students that they will be presumed innocent until proven guilty,” the report found.
In addition, the report found that three out of four schools do not provide adequate time for notice of the allegations against individuals.
But nearly two in three schools now have a Title IX policy that guarantees a “meaningful hearing,” in which “each party may see and hear the evidence being presented to fact-finders by the opposing party, before a finding of responsibility.”
Critics of the Trump-era Title IX regulations claim that “meaningful hearing” live questioning could be traumatic for survivors and could make it harder for victims to come forward and report incidents.
However, supporters of the revised regulations say the rule allows attorneys to cross examine a case with the victim out of the room, so it would limit any potential trauma.
In a Fox News interview last week, DeVos accused critics of failing to actually read the text of the Title IX due process protections, which she argues are “fair and balanced.” She also said Democrats are “playing to left-wing base and left-wing allies.”
Biden’s DOE last week announced new guidance on enforcement of Title IX in the following months.