Revised Title IX rules undermine justice for males accused of campus sex crimes | Opinion
If you’re sending your son to college in the fall, the environment for him just might get a little more hostile.
Last week, the Biden administration released final rules on Title IX – the wonky name for the federal legal provisions that protect men and women from discrimination based on sex in federally-funded education such as colleges and universities.
Those rules are a return to the legally discredited Obama-era rules that led to young men filing hundreds of successful lawsuits arguing that their civil rights were violated when their college or university investigated them for sexual harassment or sexual assault. At the core of the issue is “due process.”
We all know the rules for a criminal trial. A defendant is presumed innocent; is entitled to a trial; gets to cross-examine witnesses including his accuser; is able to see all the evidence; and will be found guilty only when the evidence is “beyond a reasonable doubt.”
Of course, it doesn’t make sense to have all the same rules for a school disciplinary proceeding, but the Biden administration and, by August 1st, Kansas and Missouri universities are going too far in the other direction. At the University of Missouri and K State these rules are enforced by the Orwellian-sounding “Office of Institutional Equity.”
Even now a young man accused of sexual misconduct and facing expulsion and the ruin of his academic career has significantly fewer protections at school. All three schools I mentioned used a standard called the “preponderance of the evidence” which means that half the evidence plus a tiny bit is enough for a student to be found responsible for sexual assault. That’s why OJ was found not guilty in a criminal trial, but was forced to pay his victims’ family millions after a civil trial using the preponderance standard.
Under Trump administration rules that Biden is removing, schools could have chosen to use a middle-ground standard between preponderance and beyond a reasonable doubt called “clear and convincing evidence.” Schools in Missouri and Kansas chose the lesser standard.
Under the Biden administration rules, accused students lose two other key protections – the right to a live open hearing to receive testimony and evidence and where they have a lawyer. They also are losing the right to cross-examine witnesses, including the accuser.
That’s why independent civil rights groups like the Foundation for Individual Rights & Expression (FIRE) immediately denounced the rules.
“Justice is only possible when hearings are fair for everyone. So today’s regulations mean one thing: America’s college students are less likely to receive justice if they find themselves in a Title IX proceeding,” the legal group said in a statement. “When administrators investigate the most serious kinds of campus misconduct, colleges should use the time-tested tools that make finding the truth more likely. But the new regulations no longer require them to do so.”
“Institutional” “Equity” indeed.
Backers of the new rules say they are necessary to protect the rights of young women and prevent the trauma of facing their attackers in a court-like setting. That would be great if Title IX were about protecting the rights of women, but Title IX protects the rights of both sexes from discrimination. Stripping men of their rights to protect women is a clear violation of Title IX, as courts have ruled.
There are two ways this moral disaster can sort itself out. The first is slow and brutal to both the accused and the accuser. We can wait for the courts to sort it out. When the Obama administration imposed similar rules in 2011, over the ensuing years courts weighed in hundreds of times “startled by the indifference to fairness and the pursuit of truth of academic institutions that in all other capacities champion both concepts.”
Young men who were suspended or expelled had their punishments reversed and were granted new proceedings under fairer rules by the hundreds, but in most cases, the punishments were imposed before courts could intervene. People’s lives were put on hold for years. Alleged victims had to endure court case after appeal after appeal only to find themselves back where they started.
That’s no way to treat anyone.
There is a fairer, faster way to deal with Biden’s new rules. The state legislature in Kansas and Missouri can force schools to adopt stronger protections for the accused. They should start with adopting the clear and convincing evidence standard and require open hearings and allow cross-examination of witnesses and accusers.
Kansas and Missouri students, both men and women, deserve better than the mess the Biden administration has served up.
David Mastio, a former editor and columnist for USA Today, is a regional editor for The Center Square and a regular Star Opinion correspondent. Follow him on X: @DavidMastio or email him at dmastio1@yahoo.com.
