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Biden’s proposed Title IX regulations decimate students’ rights, critics say

The Biden administration on Thursday proposed sweeping changes to the Education Department’s interpretation of Title IX that critics contend will allow biological males to have access to biological females’ locker and restrooms and also drastically rolls back students’ due process rights established under President Donald Trump.

The controversial proposal was announced on the 50th anniversary of Title IX, which states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

“The proposed regulations reflect the [Education] Department’s commitment to give full effect to Title IX, ensuring that no person experiences sex discrimination in education, and that school procedures for addressing complaints of sex discrimination, including sexual violence and other forms of sex-based harassment, are clear, effective, and fair to all involved,” Catherine Lhamon, the department’s assistant secretary for civil rights, said in a news release.

The Biden administration seeks to expand the definition of sex to include gender identity.

“You can see this playing out in everything from using accurate pronouns to maintaining separate locker room showers on the basis of sex,” Matt Sharp, an attorney at Alliance Defending Freedom, told Fox News. “They think that telling a man you’re not eligible for the women’s team is harmful and violates Title IX, and that’s simply not consistent with Title IX, its original meaning or what it’s been interpreted to mean for the past 50 years.”

The Washington Free Beacon reported that the Education Department cited the Supreme Court case Bostock v. Clayton County “to justify its interpretation of Title IX, claiming schools may not discriminate against a person based on sexual orientation or gender identity.”

“The department withheld a likely more controversial proposal that would allow transgender athletes to participate in women’s sports, saying it will provide the rule at a later date.”

The current proposal also seeks to reduce due process protections established under Trump and former Education Secretary Betsy DeVos.

“The Biden administration … is urging schools to use a lower standard of evidence to determine guilt for accused individuals, returning to the recommended standard first made by former President Barack Obama,” The Wall Street Journal reported.

The Foundation for Individual Rights and Expression decried the proposal, arguing that, if implemented, it “would gut essential free speech and due process rights for college students facing sexual misconduct allegations on campus.”

“Unlike the current regulations, adopted in 2020 after 18 months of review, the new regulations would roll back student rights by: eliminating students’ right to a live hearing; eliminating the right to cross-examination; weakening students’ right to active legal representation; allowing a single campus bureaucrat to serve as judge and jury; [… and] requiring 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.”

FIRE pointed out that the prior Title IX regulations used under Obama “led to more than 600 lawsuits — many successful — against colleges for conducting allegedly unfair disciplinary processes.”

Robby Soave of Reason noted that one “of the most fundamental improvements of the DeVos rules was the establishment of cross-examination. A representative for the accused student—such as an attorney—had the right to scrutinize an accuser’s claim during an actual hearing to adjudicate the dispute. Under the new rules, this is no longer the case.”

“… Under the DeVos rules, both the accused and the accusers were entitled to ‘inspect and review any evidence obtained as part of the investigation.’ Not so under the new rules: parties will only be guaranteed access to a ‘description of the relevant evidence.’ This description need not be written down; administrators can provide it ‘orally or in writing.'”

Joe Cohn, legislative and policy director for the Foundation for Individual Rights and Expression, wrote in a Wall Street Journal op-ed that “[b]y proposing to jettison fair proceedings, the Education Department is setting colleges and universities on a collision course with the courts.” He added:

The Biden administration’s rights rollback isn’t surprising. The Office for Civil Rights is again led by Catherine Lhamon, who held the same post during President Obama’s second term. When Education Secretary Betsy DeVos issued the current regulations in 2020, Ms. Lhamon tweeted that the protection of due process was a return “to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.” It should have been disqualifying to suggest that providing accused students with the right to a meaningful opportunity to ask questions of their accusers is the equivalent of legalizing rape. But it’s tough to strip people of basic rights without fanning moral panic. Questioned by senators about her statement during her confirmation hearing last July, Ms. Lhamon stood by it without apology. The Senate confirmed her on party lines, with Vice President Kamala Harris casting the deciding vote.

The Education Department is accepting public feedback on its proposed Title IX regulations for the next 60 days.

MORE: Pro-due process groups urge Ed. Dept. to retain Title IX rules established under Trump

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About the Author
Fix Editor
Jennifer Kabbany is editor-in-chief of The College Fix.