It is not often that conservative and libertarian groups want the federal government to regulate more. But in higher education today, the rot is so deep that more federal regulations are necessary as a corrective measure.
Title IX of the Education Amendments of 1972 prohibits educational institutions from discriminating on the basis of sex. But, for over a decade, colleges and universities have relied upon distorted interpretations of the statute to provide legal cover for the suppression of speech and the denial due process on campus.
They have built massive sexual misconduct bureaucracies to investigate and discipline every manner of sex-related behavior, whether sexually-provocative jokes, “offensive” academic writings, drunken hookups, or forcible rape.
At Northwestern University, Title IX bureaucrats famously investigated Laura Kipnis, a feminist film professor, for criticizing university policies against professor-student relationships in the Chronicle of Higher Education. At Yale, a sexual misconduct committee investigated an undergraduate student for using rape as an example of an “irrational act” in a philosophy paper.
Countless students have been labeled as rapists and expelled from school on the basis of lawful behavior in what they believed to be consensual relationships. Other horror stories abound.
Often, these college bureaucracies stack the deck against the accused by, among other things, eliminating the presumption of innocence and denying those accused of wrongdoing any meaningful opportunity to defend themselves. In the #MeToo era, Title IX bureaucrats are trained to “believe all women” and to view all of an accuser’s actions as evidence confirming trauma.
The Department of Education’s proposed regulations, published in the Federal Register in November 2018, attempted to clarify the obligations of schools and restore procedural fairness. The regulations define sexual harassment under Title IX in accordance with Supreme Court precedent, rather than current cultural norms. They also outline a school’s obligation to respond meaningfully to every report of sexual harassment, and they ensure that due process protections are in place for all students.
Although the Office for Management and Budget completed its monthslong review of the regulations on March 27, the Trump administration has yet to release the new rules. What seems to be the holdup?
A number of politicians and special interest groups have asked the Trump administration to delay the release of the rules until after the coronavirus crisis has passed. Given that we have no idea when the pandemic will end, this request is little more than a ruse designed to shelve indefinitely rules that certain politicians and activists oppose on the merits.
Contrary to arguments that the novel coronavirus requires a delay, this is actually an ideal time to issue these regulations. Because students are not physically present on campus, the number of sexual harassment and assault claims under Title IX administrators’ jurisdiction is likely to have fallen precipitously. This means college administrators now have more time to revise their sexual misconduct policies before students return to campus.
The argument that issuing new regulations during a pandemic will divert scarce educational resources is blatantly pretextual. The Trump administration released draft regulations almost a year and a half ago. Title IX administrators have had plenty of notice. Indeed, by this point, preparation for the implementation of these regulations should be well underway.
Conservatives and libertarians are right to oppose the growth of the administrative state and increased regulation generally. But the situation on campus is dire, and campus bureaucrats remain intransigent. Unless the federal government acts, and acts soon, colleges and universities will continue to use Title IX to stack the deck against the accused and trample the values of free speech and academic inquiry they claim to hold dear.
Much of what the government does can be delayed during this time of crisis, but due process can’t wait. Students, parents, and faculty deserve a just system, and they deserve it now.
Jennifer C. Braceras is the director of Independent Women’s Law Center. Nicole Neily is the president of Speech First.