The due course of brick wall

With Joe Biden’s vice president making sexual assault a signature issue on campus, feminists hope to return to the time when students found guilty of sexual misconduct were found guilty. Back then, school officials routinely withheld information and evidence. And the administrators insisted that complainants could not be interviewed so that they would not be traumatized again. All of this made it easier for colleges to get sparse “findings” of sexual assault, even in cases where it seemed totally implausible that assault had occurred. However, these “discoveries” gave the colleges the opportunity to claim that they were tough on this crime.

A return to this past of evidence-free, inadequate convictions is not possible.

Feminists now focused on repealing the new Trump Title IX regulation face a new barrier that the Obama-appointed Civil Rights Office (OCR) never encountered: the courts. During the years Catherine Lhamon ran Obama’s OCR and issued her infamous extra-legal Dear Colleague Letter (“DCL”) which reduced due process protections, numerous lawsuits were filed by former students who claimed that their rights were violated have been trampled on. In many of these cases, the plaintiffs prevailed, and we now have extensive case law in violation of Lhamon Directive practices.

The DCL opened the door to abuses in the form of college “Title IX investigators” who often ignored the rights of the defendants. Former Education Minister Betsy DeVos took on the difficult project of developing actual regulations to address these excesses by repealing the DCL in 2017 and focusing enforcement of Title IX on the actual letter of the law, which provides equal access to education without discrimination guaranteed by gender.

Biden’s agents will almost certainly do their best to circumvent this DeVos reform, but they will now find that multiple appeals court rulings stand in their way. It turns out the DeVos Rule is just one brick in a much larger wall with the required basic fairness. This means that due process on campus must also be followed in the new, Lhamon-oriented Biden administration. Schools that want to avoid lawsuits should take note of this.

In fact, the scope of the due process protection under Title IX now mainly lies with these federal courts, which themselves recognize other longstanding authorities in support of the principles of due process. These sources include state common law, state administrative regulations, and also traditional treatises such as Black’s Law Dictionary. All of this provides information about the meaning of the word “fairness”, which is guaranteed not only in the agency’s rules, but also in the schools’ codes of conduct that apply to students, faculties and staff.

In sum, schools can no longer compromise when it comes to the procedural rights of students accused of sexual misconduct under Title IX, regardless of the fate of the Trump Rule.

The most significant such federal case for the interpretation of a student code was last year’s Third Circuit statement in the John Doe v Philadelphia University of the Sciences case. There, the court looked at state jurisdiction, the Pennsylvania Administrative Code, legal dictionaries, and other opinions to understand the meaning of the “fairness” guaranteed in the student handbook. It stated that this meant “in accordance with due process” which, according to those sources, must include live hearings and cross-examination, both of which John Doe was illegally denied. The court stressed that both the sixth and seventh circuits would have similarly defined fairness and due process, the latter in a statement from now Supreme Court Justice Amy Barrett.

Significantly, none of these opinions concerned the new Trump / DeVos rule. All of them, however, confirmed the schools’ obligation to comply with basic procedural rights in their disciplinary decisions – including in private schools such as the Philadelphia University of the Sciences. The court recalled: “As a private university, U Sciences does not come under the constitutional guarantees of due process. However, we find that federal notions of fairness in student disciplinary proceedings are consistent with those recognized in Pennsylvania jurisdiction. They require … the basic elements of federal procedural justice [including] … The opportunity to question witnesses ”, among others.

In sum, schools can no longer compromise when it comes to the procedural rights of students accused of sexual misconduct under Title IX, regardless of the fate of the Trump Rule.

However, the claim that these cases deserve special treatment because they involve private conduct with few witnesses is laudably addressed by the requirement of the new rule that complainants be offered supportive measures such as counseling, time extensions, and escorts on campus – but none Compromising adequate process protection for those who blame them.

Interestingly, courts have also used the DCL and the culture it creates against schools as evidence of illegal bias against male students when combined with other evidence of pressure to be tough on sexual assault. The third circuit stated: “[U]An overreaction by the university to DoEd or other public pressure is relevant to the assertion of a plausible discrimination claim under Title IX. “Subsequently, U Sciences found that it was not possible for the complainant to investigate breaches of confidentiality, and that both Doe and Roe were“ comparatively drunk ”and therefore were both less able to give true gender consent To give. However, school officials never asked whether the complainant had established relationships without Do’s consent. In light of this, along with the DCL and its pressure, the Court concluded, “Doe plausibly claims that U Sciences enforced the policy against him because of his gender alone.”

Another problem raised by the DCL culture, and hopefully soon addressed by the courts, is the widespread application of Title IX to crime rather than access to education, a highly questionable and tremendous expansion of the Office’s powers and responsibilities for title IX. As a recent report noted, the purpose of access to education “appears to be completely lost in Title IX offices,” which instead focus on sexual encounters with students who have gone bad. The DCL culture caused the Office for Title IX to begin neglecting the jurisdiction it has – over educational opportunities – while exercising the jurisdiction it never intended – over crime. In practice, Title IX employees today are more sex monitors than access monitors.

Fortunately, the days of this arbitrary and even discriminatory administration of Title IX based on case law in favor of due process are drawing to a close. The last word is no longer with the Title IX office of the campus or the Oval office, but with the controlling federal appeals authority. And the university council must advise its institutions accordingly.

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