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

Editor’s Note: This article was originally published by The College Fix on April 8, 2024 and is crossposted here with permission.

‘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.”

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.

Photo by U.S. Secretary of Defense on Flickr 

One thought on “Biden Title IX changes threaten free speech, due process: legal experts”

  1. The situation is far worse that it appears for two reasons.

    First, the institution’s Behavioral Intervention Team (BIT) will already have decided the accused student’s fate and punishment before he is even given notice of accusation. The “single campus bureaucrat [serving] as judge and jury” will already have been told what her decision will be and hence everything else is largely irrelevant.

    Second, one needs to remember that the Behavioral Intervention Team process is a combination of student judicial, student mental health and law enforcement, with the student accorded absolutely NO due process when law enforcement is combined with the mental health approach.

    Remember both the concept that “speech is violence” and the related concept of cognitive aggression — that someone saying unpopular things will inevitably become the next campus shooter if not stopped. (College administrators aren’t like us — they believe this stuff…)

    So they define the student as being both mentally ill and dangerous — never mind that they are neither qualified to do so nor have any real basis to do so — if a female student doesn’t feel “safe” with him on campus, he is a threat to campus safety who needs to be removed for the good of the campus.

    Thus you have interim sanctions (expulsion now, hearing later), involuntary medical withdrawals and all kinds of other things which have the effect of the student no longer being a student at that institution. And when his peers see him disappear into the night (often literally, in the presence of campus police) and never be seen again, they are not going to ask exactly what process was used to get rid of him.

    These changes would have been worth fighting twenty years ago — but with the introduction of the BITs (which every institution now has), along with the related abuse of the mental health laws, things like this are largely irrelevant.

    As an aside, I argue that we are now dealing with the third generation of hate speech codes. The first, back in the 1980s, were the fiat codes — the “thou shalt not say.”
    The second, in the ’90s, were the harassment codes — essentially that a student could say it but not “direct it” at a specific person. As pointed out above, SCOTUS has struck down this approach, and the decisions striking down the fiat codes didn’t have to go beyond the District level.

    We now have the therapeutic mental health speech codes — it’s conceded that a student has the right to say it, even if it offends others, but by doing so the student indicates that he/she/it is mentally ill and in need of treatment. And as this is therapeutic and not punitive, the fact that the speech is protected by the First Amendment (at a public institution) is irrelevant.

    It’s really Orwellian and it’s really happening — and as these star chambers are making their decisions before even notifying the student of an accusation, it’s why everything else is truly irrelevant. Sometimes the students really are crazy — I knew one undergrad who very much was crazy — but crazy people have First Amendment rights too. Even the US Department of Education concedes that — you have to objectively address conduct and not disability.

    But the problem here is that “harassment” is viewed as conduct and not speech.

    It’s right out of the Soviet Union circa 1978….

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