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Why Universities Need the New Title IX Rules

Earlier this month, Betsy DeVos, President Trump’s education secretary, announced new Title IX regulations for sexual misconduct by college students. As has been widely reported, while they take allegations of sexual misconduct seriously, they strengthen protections for the accused, permitting cross-examinations by representatives of the parties to disputed conduct and preventing the same college administrator from being both investigator and decision maker. The rules also try to prevent comments about what should constitute misconduct from being used as a predicate for a Title IX claim.

If there were any doubt that the regulations were needed, representatives of universities and colleges, like Ted Mitchell of the American Council of Education, dispelled them by their denunciations of the rules.

The first complaint is that the rules are costly, particularly at the time of the Covid-19 crisis. But these same organizations did not complain of the huge costs imposed by the Obama administration when its so-called Dear Colleague letter forced colleges to ramp up sexual harassment investigations by hiring many more Title IX officials. And they were then under the threat of losing all federal funding, a threat which the new regulations relax (a point Mr. Mitchell chose not to acknowledge).

The American Council also complains that the new Title IX regulations intrude on the management of the university—as if the problem is with these particular regulations rather than the decision to expand Title IX in the first place, a decision taken, of course, by the Obama administration. It further complains that regulations are “legalistic,”—as if a process that may brand a young student for life as a sexual miscreant or predator should not be bound by strict rules. Unacknowledged as well are the many court cases (legalistic no doubt!) that overturned decisions of colleges made under the previous rules, which flouted due process.

We might consider who runs the American Council of Education. Its president, Ted Mitchell, was none other than the undersecretary of education during the Obama administration. That administration gave a green light to the kind of “progressive” policies the administrators that Mitchell now represents would like to implement. The higher-education policies of Democratic administrations are driven by the same constituency groups to which university administrators pay attention.

Thus, it was not surprising that many universities took the Obama administration’s guidance on Title IX rules and made them even worse than they were required to be. My alma mater Harvard was an egregious case in point. Nineteen of its own law faculty described its rules as characterized by “the lack of opportunities for the accused to see the facts against him or her, face the accusing party, and have counsel available.”

Or take Northwestern University, the institution at which I teach. Laura Kipnis, a professor in the Communications Department, was twice investigated, not for any actions she took, but for her principled comments complaining about the injustice of the University’s rules and procedures on matters relating to sexual relations. The cases against her were ultimately dismissed, but not before she was forced to defend herself in lengthy processes, and free speech at the university was chilled.

University presidents are unlikely to be a match for either the ideological fervor of student movements like MeToo or the bureaucratic interests of the lower-level administrators charged with Title IX programs.

Without the kind of clear standards that the new Title IX regulations provide, university bureaucrats will naturally produce unfair procedures that will result in injustice. First, these bureaucrats are almost entirely ideologically on the left—often the far left—and enamored of identity politics. As Sam Abrams of Sarah Lawrence College showed, college administrators are even farther to the left than the faculty, and they seem to shape the views of students in an illiberal direction. (As a reward for Abrams’ op-ed, students attempted to get Sarah Lawrence to revoke his tenure).

Beyond their personal views, even well-meaning administrators have bureaucratic incentives to expand their jurisdiction and increase their discretion. They then become more powerful and less accountable.

And administrators will not often be reined in by either the faculty or the leadership of the university. Some of the faculty are themselves caught up in the social justice wars and are happy with an unfair process so long as it is ideologically sound. Others just stick to their knitting. There are no rewards and some penalties for attacking your administration. Academics have generally remained as courageous as they proved when Allan Bloom wrote in The Closing of the American Mind that at Cornell, where he taught, professors in the natural sciences supported affirmative action because those admitted under lower standards would not take any of their classes.

To be sure, there are occasional exceptions, like the Harvard Law school faculty who opposed their university’s rules on Title IX. But that is indeed exceptional: law professors are professionally interested in due process, and Harvard law professors have so many outside options that they can afford to speak out.

Leaders of universities—Presidents, Provosts, and Deans—are also not likely to control their bureaucracy on issues like Title IX, even if they are not themselves enthusiasts of the causes that motivate their students and subordinates. The modern university leader wants peace on campus above all. Peace makes for an easier life. It is also essential to an administrator’s career, and most senior administrators aim to ascend the ranks of prestige and pay.

Ever since Nathan Pusey’s tenure at Harvard was cut short by his decision to summon the police to throw out the student occupiers of his office, universities’ heads have lived in fear of radical takeovers and have acted to appease their demands. Hence, they are unlikely to be a match for either the ideological fervor of student movements like MeToo, which call for automatically believing all accusers, or the bureaucratic interests of the lower-level administrators charged with the programs.

Thus, the Trump’s administration’s rules are needed in no small measure because they create barriers against the predictable pressures of students, the enthusiasm of Title IX bureaucrats, and the pusillanimity of senior campus officials. They offer a model for how to proceed in drafting any federal regulations applied to universities.

It is true that, in a perfect world, these guidelines would be the second-best. The first-best world would have no such regulations at all, but leave universities to police themselves, disciplined by the common law rules of tort and contract as well as the criminal law. That regime would allow for a diversity of approaches that suit the diversity of institutions. But so long as the government is going to enforce Title IX, only clear and reticulated rules will protect due process and free speech against a university culture that sacrifices them to the madness of young crowds and the fervor of petty bureaucrats.

Reader Discussion

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on May 21, 2020 at 08:10:08 am

Sexual assault is a crime not a college level "dog ate my paper" act. It should be investigated by the police ajudicated by a prosecutor, judge, and jury. Anything else is injustice.

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K-Jon
on May 21, 2020 at 11:08:06 am

I have been watching my University for years. I even have wondered if the school should hire one of the officers I hired as an assistant coach for supervision of players who were convicted of misdemeanors. But be that as it is, I have a real problem with a department run by social workers and those who successfully pass through the hoops of selection to he university bureaucracy with all the attitudes regarding "victimhood" and "equity" as defined by GS-14s
In a galaxy far-far away I learned about the bureaucratese that describes this activity as an offense against the University and a willingness to bend rules around organizational values as defined in non-smoking areas. Ideas like safe space, etc are . In the State Corrections department there are mandates regarding investigation of violations of the Prison Rape Enforcement Act. The investigations are conducted for what they are--including following all rules of criminal investigation. If the investigation shows a crime, itis referred to the county prosecutor for appropriate action. Niceties like Miranda are observed and the criminal justice system is involved.
I have the further question of whether a regulatory system has any power to read into a statute rules and definitions that Congress did not so define,

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Earl Haehl
on May 21, 2020 at 11:54:33 am

Title IX was a dreadful mistake. The law was wholly unnecessary. It addressed no legal need and was but a cowardly political concession to hyped-up sexual politics. It has proven to be a miserable failure which for 5 decades has needlessly compounded the legal problems, greatly bloated the administrative staffs, enormously increased the cost and incalculably exacerbated the undeniable failure of America's higher education system.

Title IX should be repealed. That is, of course, politically impossible. The next best thing, as McGinnis states, would be for the federal government to provide no Title IX regulations. That, too, is a bridge too far for the political cowards in Congress. So Trump has done the best thing possible in the world in which we find ourselves; he has proposed revised Title IX guidance, revisions wholly justified by the mere fact that they would repeal all of the legal corruption and political malevolence that the country inherited from Obama's Title IX guidance, as was the case with virtually everything Obama touched, soiled or destroyed during his 8 year reign of infamy.

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Paladin
on May 21, 2020 at 14:03:34 pm

“...the lack of opportunities for the accused to see the facts against him or her, face the accusing party, and have counsel available.”
No doubt, the fact that Title IX, deprives human persons of due process under the law, makes it totally unconstitutional. An error in Substantive Due Process Law, if not corrected, will always result in an error in Procedural Due Process Law.
Error begets error, while Truth begets Truth, and while it is true that error has no inherent rights, because error serves in opposition to that which is true, and every human person has the inherent Right to Truth, error can often help to illuminate that which is True.

If in fact the Spirit works in a unique way in the mystery of the Incarnation, He is also present at the origin of every human being. Our being is a “received being,” a reality thought of, loved, and given. Evolution does not suffice to ex- plain the origin of the human race, just as the biological causality of the parents alone cannot explain a baby’s birth. Even in the transcendence of his action, God is ever respectful of “secondary causes” and creates the spiritual soul of a new human being by communicating the breath of life to him (see Gn 2:7) through his Spirit who is “the giver of life.” Thus every child should be seen and accepted as a gift of the Holy Spirit.7
There is a convergence and parallelism in the divine activity in the coming into existence of the individual human being, in the coming into existence of the entire human race, and in the conception of the Christ in Mary’s womb.”

https://www.ncbcenter.org/index.php/download_file/force/182/159/

“There Is A Light That Shines In the darkness, and the darkness can not overcome Him.”

This Light Is The Love Light Of Perfect Love Incarnate, Through The Unity Of The Holy Ghost.

“Behold, I Make All Things New Again.”

There Is Only One Jesus The Christ

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Nancy

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.