Sexual Misconduct & Title IX: Due Process for Students May Be Weakened by Biden Executive Order

With a new executive order, the president suggests changes that may weaken Title IX protections for students on campus.

The New York State Assembly has selected the lawyers who will investigate allegations against Governor Andrew Cuomo that could result in his impeachment. The allegations include sexual-harassment charges made by at least nine women.

President Biden recently said that Governor Cuomo should resign if the investigation confirms the allegations.

Really? It’s a shame that such a sensible position, in line with the American conception of “innocent until proven guilty,” isn’t reflected in Biden’s policy goals for sexual-misconduct cases in schools.

Earlier this month, he signed an executive order directing the Education Department to review the groundbreaking changes that the Trump administration made to how schools nationwide handle sexual misconduct under Title IX. It signals a potentially major blow to due process for students even as Biden advocates for due process for Governor Cuomo.

Hypocrisy aside, Biden’s stance on Title IX comes as no surprise. This is not his first foray into Title IX reform. He headed the Obama administration’s task force on sexual assault on campus, which pushed unreliable statistics to justify showing zero concern for the due-process rights of respondents.

Predictably, then, the clear intention behind the executive order is to take us back to the bad old days when an accusation equaled guilt.

The two of us have had experience on both sides of the regulations — one of us from inside the Education Department, helping shape the regulations, and the other from the outside, representing scores of accused students under the Obama-Biden regime. We have seen firsthand why the regulations were needed, the work that went into promulgating them, and the beneficial effects they have had.

First, the work. The regulations were the product of scrupulous adherence to the formal rulemaking process. The Education Department met with hundreds of stakeholders, issued a proposed regulation, responded to more than 124,000 public comments, and published final regulations with many changes based on public input. This two-and-a-half-year process stood in sharp contrast to the Obama-Biden approach of imposing, by fiat, “Dear Colleague” letters lacking any public participation.

Second, the effect. In short, it has been night and day. The regulations require schools to offer educational supports to alleged victims. When institutions investigate allegations, no more can colleges hire budding Javerts with a history of victim’s-rights advocacy to serve both as the investigator and adjudicator. Now, no matter how bad the investigator is — and many of them are very bad — the parties get a live hearing in front of a decision-maker who cannot be the same person as the investigator and who must be bias-free.

The regulations give both parties clear, strong procedural rights, such as detailed written notice of the charges under investigation, the opportunity to review all the evidence before the hearing, and the right to have advisers cross-examine each other to test credibility.

The regulations benefit schools, too. The new regulations define “sexual harassment” in a way that protects free speech while capturing offenses — stalking, sexual assault, dating violence, verbal harassment, quid pro quo misconduct by school employees — that objectively denies equal educational access. The regulations acknowledge that Title IX is a U.S. law that doesn’t apply in foreign countries. No longer must schools be the sex police for everything that happens anywhere in the world between their students. Nor must schools any longer put students and professors through Title IX investigations for an off-color joke or sex-related academic discussions.

Although political considerations mean that few schools say so publicly, we have both heard from many school officials and lawyers who secretly applauded the new regime. Not only are they happy to have their responsibilities clearly delineated, but they also understand that more due process means better results and fewer lawsuits.

Crafted against the backdrop of the #MeToo movement, the Trump-era regulations stand as a blueprint for handling sexual-misconduct allegations in schools, in workplaces, and even against politicians: Provide immediate support to an alleged victim, but refrain from punishing the accused until and unless the allegations are proved true.

Biden’s executive order, however, may throw schools back into Title IX chaos. Our hope is that the Biden administration is held accountable for adhering to the same intensive rulemaking process followed by the Trump administration: If they wish to return to an unpredictable system of campus kangaroo courts, they should at least do so in full public view. Let them explain to Americans why a Democratic governor deserves a presumption of innocence but students and professors do not.

Since taking office, President Biden has often shown that his talk of being a moderate was little more than posturing goosed by familiarity and a fawning media. Let’s hope, however, that this executive order is more posturing than policy and that the administration does the right thing and lets the new regulations stand.

Justin Dillon is a partner at KaiserDillon PLLC, where he represents students in Title IX cases nationwide. Candice Jackson served as acting assistant secretary for civil rights (2017–18), and deputy general counsel (2018–21), in the U.S. Education Department and currently practices law in California.