Biden's New Title IX Rules Double Down on Bad Ideas | Opinion

Last week the Biden administration unveiled a proposed reform of Title IX regulations—the U.S. federal rules adopted in 1972 to guarantee equal gender access to college facilities, such as sports programs. In 2011, the Obama administration vastly expanded their purview to include all suspected instances of gender-based discrimination in academic environments, including supposed cases of sexual harassment.

Then-vice president Joe Biden was tasked with elaborating the administration's position, while the policy itself was developed by Assistant Secretary of Education Catherine Lhamon, a trained lawyer who has never worked in a university. Lhamon ensured compliance by threatening academic administrators with loss of all federal funds if they failed to obey her directives.

Notoriously unfair to the accused, the Obama-era Title IX guidance created what amounted to kangaroo courts in which respondents had limited access to evidence and no right to cross-examination, hearings, or legal counsel. University administrators were empowered to assign guilt on the basis of a "preponderance of the evidence" standard rather than the more rigorous "clear and convincing evidence" standard.

The guidance also promoted a single-investigator model, which allows a university bureaucrat with few or no qualifications to serve as detective, prosecutor, jury, and judge, empowered to make life-altering decisions. No appeal process was required. Training materials for investigators, rarely disclosed and usually provided by unidentified "experts" from shady consulting firms, recommended bias against respondents (almost always male) and presumption of guilt.

Propaganda around the issue falsely claimed that women never lie about sexual harassment and implausibly held that American colleges have higher sexual assault rates than inner-city Detroit. Unsurprisingly, many schools have reported adverse findings in 75 percent of Title IX cases or more.

As Title IX became a fact of campus life in the 2010s, commentators across the political spectrum objected to having a secret police govern sexual activity in educational institutions. As Johnny Depp's recent defamation lawsuit against Amber Heard has vividly shown, ever fewer Americans support the discredited #MeToo movement, which has suffered setback after setback.

Since 2013, more than 700 Title IX-related lawsuits have been filed in federal courts, often resulting in high-value judgments or settlements favorable to respondents. Some 73 percent of those lawsuits have included defamation claims against complainants. Many also brought claims against Title IX officials, who are often exposed as biased against male students.

Joe Biden signs bill
WASHINGTON, DC - JUNE 25: U.S. President Joe Biden signs the Bipartisan Safer Communities Act into law in the Roosevelt Room of the White House on June 25, 2022 in Washington, DC. The legislation is the first new gun regulations passed by Congress in more than 30 years. Tasos Katopodis/Getty Images

According to the Chronicle of Higher Education, the job of Title IX coordinator is increasingly sad, isolating, and stressful, in addition to being legally risky—all predictable, well-deserved consequences for individuals who seek career-ending power over teenagers and twentysomethings without regard for their basic civil rights.

In September 2017, the Trump administration replaced the Obama-era guidance with somewhat fairer investigative requirements, though many universities simply ignored them. In May 2020, the Department of Education issued comprehensive new rules that guaranteed many due process rights, including hearings, legal representation, cross-examination, full access to evidence, and appeals. The progressive Left decried Trump's reforms as a brutal assault on "survivors," even though complainants were not, in fact, deprived of any rights.

Despite having been accused of sexual harassment by multiple women during the 2020 presidential campaign—and with then-senator Kamala Harris publicly stating that she believed his accusers—Biden pledged to make counterreform a priority of his administration. He even nominated Lhamon to return to her post in the Education Department, an appointment that was widely criticized, delayed for several months due to fierce congressional opposition, and finally only approved by Harris' tie-breaking vote in a deadlocked Senate.

The new rules, which weigh in at over 700 pages, set investigative procedures back to the dark days before 2017. They also expand the definition of "gender" to include gender identity and sexual orientation. Ironically, given Title IX's original purpose, the new rules do not address the politically unpopular assertion of "transgender rights" to participate in opposite-sex sporting events, which the otherwise comprehensive document curiously leaves for later deliberation.

Like the Trump reform of 2020, Biden's rules must go through a lengthy review and comment process. This means they may not be implemented for years, possibly until after the next presidential election, which Biden seems unlikely to win. Enforcing them will in any case be problematic. Courts have already found most of the restored Title IX provisions to be unlawful, effectively setting up schools for major legal liability if they comply. The new rules also put complainants at increased risk for defamation lawsuits since testimony without cross-examination—which the Trump reform prohibited—is not legally privileged.

Resisting Title IX, moreover, is a powerful civil society movement, complete with outspoken activists, determined nonprofits, experienced legal specialists, dedicated academic experts, an increasingly sympathetic media, and an informed general public that overwhelmingly rejects cancel culture and has—justifiably—less faith in the integrity of our colleges and universities.

If Biden's new rules stand, the next Republican president is sure to repeal them. Any Democratic successor will almost certainly then restore them. Rather than play that dismal game, Republicans might reasonably decide to repeal Title IX altogether and get creepy university administrators out of people's private lives for good. There are many other ways to ensure equal gender access to college facilities without empowering woke zealots to ruin lives, educations, and careers. And while they're at it, the useless Department of Education, its 4,400 swamp-dwelling employees, and wasteful $68 billion budget can go, too.

Paul du Quenoy, Ph.D., is President of the Palm Beach Freedom Institute.

The views expressed in this article are the writer's own.