Title IX Will Become a Vehicle of More InjusticeTags LawLegal System
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President Joe Biden vowed to put a “quick end” to the Trump administration’s Title IX regulations and return to Obama-era ones at universities. If this happens, the sexual misconduct hearings will be deeply impacted. These “trials” judge whether those accused of sexual misconduct are innocent or guilty. The Obama-era hearings expressed social justice standards that greatly favored an accuser; the Trump-era ones were closer to the Western tradition of due process. The hearings remain a major battleground in the culture war.
Universities are the wellspring of social justice and of the “warriors” who have carried the leftist ideology into the streets and every American institution. With the 2020 riots, the average person now appreciates the threat that social justice poses to traditional Western values such as due process. No compromise is possible between the two world views.
What is the heart of the conflict? Social justice rests on three dogmatic assertions. Gender and race define every individual; discrimination against oppressed races and genders defines America; all social inequality, such as pay differentials, is the result of systemic discrimination. Justice requires skewing society’s law and policies to favor “oppressed” groups in order to forcibly redistribute wealth, status, and opportunities to them from privileged ones—most notably white males. Traditional Western values are individualistic, not collectivistic; every person possesses the same human rights to the same degree, all of which spring from the fundamental right of those who are peaceful to live without interference. Individuals define their own character and are responsible for their actions. Justice means respecting everyone’s equal right to person and property and providing remedy when those rights are violated.
People now associate social justice with street-gang activism or shrill accusations of racism and sexual abuse. But many cultural changes that arrive on campus and flow inevitably into society do so quietly. They come from behind-the-door meetings and obscure organizations that forge policy, such as ATIXA (Association of Title IX Administrators) and Title IX campus compliance offices. These agencies are the bureaucracy of social justice, and ATIXA is a cautionary tale about what happens in the bureaucratic shadows. It is happening right now.
Under the Trump administration, Secretary of Education Betsy DeVos pushed back some of the most damaging aspects of social justice at universities. Campus sexual abuse hearings became a key cultural battleground with the Obama administration’s notorious 2011 “Dear Colleague” letter; it prioritized the rights of accusers by denying due process to those accused. It did not have the force of law, but it had the force of funding; schools that did not comply could lose their federal money, including student loans, upon which almost all universities depend.
The outcome was predictable. Kangaroo courts denied basic rights like the presumption of innocence to an accused; the accused were overwhelmingly male. On the basis of flimsy evidence and biased procedures, young men (and some women) were found guilty and confronted the destruction of their reputations, careers, and futures. Those who sued the universities frequently won or settled out of court. But the hearings rolled on. DeVos returned some basics of due process to the procedures, including the right of an accused to know the exact charges against him and to view the evidence—niceties that were often withheld.
Social justice advocates reacted with fury. In an article entitled “Betsy DeVos Restores Due Process, Dems Freak Out,” National Review described the reaction of Democrats. Catherine E. Lhamon, chairwoman of the US Commission on Civil Rights, warned that DeVos was “taking us back to the bad old days, when it was permissible to rape and sexually harass students with impunity.” In other words, due process was seen as a blank check for men to rape. (Lhamon has been tapped to serve as the deputy director of the Domestic Policy Council for Racial Justice and Equity in the Biden administration.) The Biden campaign platform itself stated, “The Trump Administration…is trying to shame and silence survivors” by giving “colleges a green light to ignore sexual violence and strip survivors of their civil rights.”
Now a woke regime has returned to campus justice. Whatever happens will offer a window into how mainstream justice may evolve in the coming years. And ATIXA offers a window into the dynamics.
ATIXA is influential. Indeed, it is currently drafting what may be the next Title IX bill. ATIXA is “a professional association for approximately 5,500 Title IX coordinators, investigators, and administrators,” (as of January 18, 2021). It has the mission of “helping to advance gender equity in schools and colleges”; since 2011, it has trained and certified “more than 7,250 Title IX Coordinators and more than 23,550 Title IX investigators.” ATIXA’s job might seem to be the facilitation of whatever laws and policies are on the books, but it adamantly resisted implementing DeVos’s changes.
The College Fix documented one example. DeVos required the training materials used by Title IX administrators to be posted. This allowed an accused to access the rules and procedures by which he would be tried. ATIXA president Brett A. Sokolow has a history of covertly resisting such regulations. In a January 15, 2020, op-ed for Inside Higher Education, he advised: “About 20 to 25 percent of the (new Title IX) regulations are potentially very detrimental…and we will need…to work within those requirements, challenge them in court or find clever work-arounds” (emphasis added). Sokolow tried to work around posting training materials by claiming they were copyrighted and not able to be shared. The College Fix’s interpretation: “ATIXA will sue colleges for following a legally binding regulation.” Sokolow backed down, however, when the Department of Education’s Office of Civil Rights (OCR) noticed and doubled down on its demand.
Passive-aggressive obstruction is no longer necessary. A memorandum to ATIXA listserv members in early January 2021 commented, “Dear Members….The Senate will now be in Democrat control.” A lobbying firm was duly engaged, as Sokolow now considers new Title IX legislation to be “a realistic possibility”; it is an endeavor in which ATIXA wants to take a leadership role. “Our initial thoughts include the promulgation of a model Title IX Restoration Act (TIXRA, naturally),” he writes, to show “how Title IX should be reshaped by the Biden administration and Congress to best serve the field and the goals of sex/gender equity.” (Sex/gender equity is not clearly defined.)
Sokolow’s memo gives lip service to “due process”—a term that appears with scare quotes around it. Elsewhere, a poll of “ATIXA Title IX experts” offers a more concrete sense of the looming danger to due process. JD Supra reported on the poll in an article by Sokolow entitled “Biden Is President-Elect. Can We Just Ignore the Title IX Regulations Now?“ The new woke hearings should include:
- Relief from direct cross examination by an advisor
- Removal of nonsensical exclusionary/hearsay rule regarding “statements”
- Revocation of the confusing rules on relevance v. directly related evidence
- Two ten-day review periods likely collapsed into one period
- Formal complaint requirement will be reversed
- Hearing requirements for at-will employees will be limited
- Hearings only required when some form of separation is on the table, and the definition of hearing will be broader and less formal
- Mandated dismissal of Title IX complaints removed
- Broad retaliation protections rolled back, especially as applied to respondents
- Removal of any necessity for two processes
In short, the woke campus hearings would discourage direct cross-examination, allow hearsay, loosen rules of evidence, be conducted quickly, and bypass the need for a formal complaint…the denial of due process would be policy. This despite the fact that, as Sokolow stated in a phone interview, “Probably 40 or 50% of allegations of sexual assault are baseless. There are a lot of cases where someone says they were incapacitated, but the evidence doesn’t support that they weren’t able to make a decision.” A “model” Title IX bill is currently being drafted by ATIXA and will be circulated the “to Congress and Biden Administration.” An earlier draft entitled “ATIXA Submission to the ED ART on Title IX 12.18.2020” that was submitted to Biden’s education transition team hints at the content. The hints are confusing, however. The bill endorses Biden’s progressive approach while stating, “a return to...the 2011 DCL (Dear Colleague Letter) or maintaining the status quo of the 2020 regulations would not be supported by ATIXA’s 6,000 practitioner members.” In short, there is pushback from the membership. Also, a mountain of complaints and lawsuits have proven expensive in time and money.
Therefore “ATIXA seeks a balanced approach that honors the rights of all parties in the Title IX resolution process.” So far, so good. The same hearing standards would seem to apply to all participants regardless of gender or race. Yet, elsewhere, the submission commits to “focusing broadly on the impacts that Title IX work can and should have on the LGBTQIA+ community [and] on people of color.” There is a tension between the two statements.
Moreover, an accused’s due process rights are directly attacked. The right of cross-examination, for example, would be restricted to spare an accuser distress; “if cross-examination is required in a jurisdiction [where the campus is located], it is sufficient to have party-proposed questions submitted to and then posed by the neutral, impartial decision-maker,” presumably appointed by the university. The right of direct examination by the accused or his advocate would be denied. (Nothing is said about jurisdictions in which courts do not require the cross-examination.) Currently, if a witness refuses to submit to cross-examination, his or her statements during the investigation are not considered at the hearing. ATIXA wants this rule to be “revisited,” because “it’s too drastic, is too complicated for laypersons to apply, has no litigation equivalent, and takes away the discretion of the recipient to appropriately assess relevance and credibility.” Why “laypersons” are holding court-like hearings when the basics of due process and court procedure are too complicated for them to understand is not addressed.
Elsewhere, the clarity of ATIXA’s recommendations is chilling. For example, “ATIXA supports universal application of the preponderance of the evidence standard….Existing regulations permit a choice of standards.” Preponderance of the evidence means that if a hearing believes a rape complaint to be supported by 50.01 percent of the evidence, the accused is “guilty” and open to expulsion or other common punishments.
All in all, a prediction in the JD Supra article seems half correct. “If we had to prognosticate, we’d guess that fairly early on, the Biden administration will rescind the 2020 regulations, and implement another new Dear Colleague Letter/Q&A style approach.” BUT the new Title IX is likely to be a new Obama-style DCL approach that is tweaked to avoid the legal pitfalls visited on the 2011 one. I disagree; withdrawing the 2020 regulations will not be a quick process.
The DeVos administration did not use a DCL or other guidelines to impose its regulations. It went through the arduous Administrative Procedure Act notice-and-comment process, which is why it was not enacted until 2020; the process and obstructionist tactics made it take that long. To rescind DeVos’s regulations requires the same long slog through bureaucracy and Congress. This alone makes new regulations unlikely before 2022 at the earliest.
ATIXA and Title IX may seem arcane to those not on campus or without a loved one who is. But the incredible bias and injustice embedded in earlier sexual misconduct hearings was integral in promoting a social division that borders on hatred. Close attention must be paid to the social justice measures on campuses, because they are part of the ideology promoting street riots, increased violence and hostility between groups. College administrators and professors have actively stoked hatred between the genders and the races for decades. And now society reaps a whirlwind.