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Biden Title IX changes threaten free speech, due process: legal experts

‘Single campus bureaucrat’ would be ‘judge and jury’

Pending Title IX changes threaten free speech and due process, according to several legal experts who spoke to The College Fix.

The administration’s submitted updates to Title IX of the Education Amendments of 1972 are under regulatory review as of April 5. Title IX prohibits discrimination on the basis of sex in education institutions.

The Office of Information and Regulatory Affairs, which is reviewing the proposal, did not respond to an April 5 email about an update to the process.

The Foundation for Individual Rights and Expression has concerns.

“The proposed rules abandon the speech-protective Trump-era regulations by using an unconstitutional definition of student-on-student harassment,” Tyler Coward, lead counsel for the civil liberties group, told The College Fix via email.

According to him, the Supreme Court has already defined the standard of harassment in Davis v. Monroe County Board of Education, and the new regulations would violate it. With the definition of harassment distorted, there would be more censorship on college campuses.

Coward said the “due process rollbacks of the proposed rules” are “numerous and alarming.”

“They would: eliminate students’ right to a live hearing; eliminate the right to cross-examination; weaken students’ right to active legal representation,” he wrote.

The new regulations would “allow a single campus bureaucrat to serve as judge and jury; require colleges and universities to use the weak ‘preponderance of the evidence’ standard to determine guilt, unless they use a higher standard for other alleged misconduct.”

George Washington University law Professor John Banzhaf agreed with Coward’s concerns.

Banzhaf told The Fix “under the new regulations” for Title IX complaints, those charged with violating the rules “would be entitled to various procedural due process protections which have yet to be determined.” However, there is a history of schools failing to fulfill due process requirements even before the new regulations, he said.

He said many schools failed “to provide an opportunity to cross examine witnesses, to have detailed access to detailed information about the charges against them, etc.”

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He did say that there are some free speech concerns with the proposals as well.

The Education Department seeks to “provide full protection from sex-based discrimination,” “protect LGBTQI+ students from discrimination based on sexual orientation, gender identity, and sex characteristics,” according to its proposal.

The new rules would “require schools to respond promptly to all complaints of sex discrimination with a fair and reliable process that includes trained, unbiased decisionmakers to evaluate all permissible evidence.”

Banzhaf said potential rules requiring teachers to use someone’s preferred pronouns would violate the First Amendment’s prohibition against compelled speech.

The president of Stop Abusive and Violent Environments, a due process and civil rights group, criticized the proposal as well.

“If approved, the Department of Education’s regulation will impose sweeping changes on our nation’s schools, creating destructive ripple effects throughout American society,” Ed Bartlett wrote in a news release sent to The Fix.

The new regulations would largely be a return to President Barack Obama’s policies, implemented not through rulemaking but through a “Dear Colleague” letter that minimized due process on campus.

President Donald Trump rescinded the “guidance” issued by his predecessor but treated as law by universities.

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About the Author
College Fix contributor Jack Shields is a student at Northwestern Pritzker School of Law, and a graduate of Texas A&M University. He is also an editor and columnist at Lone Conservative.