DeVos Title IX Rules Strengthen Due Process Rights in Schools

The new Title IX Rules released on May 6, 2020 by US Department of Education Secretary Betsy DeVos are a long overdue correction to the serious procedural injustices that have permeated for decades sex offense investigations at public educational institutions in the USA, including private institutions that receive federal funding. Due Process rights, which are already central to our nation’s legal codes and encapsulated in the Fifth and Fourteenth Amendments to the US Constitution, are strengthened for alleged victims and perpetrators alike by these new Title IX rules, a summary of which has been provided by the Department:

• “The proposed rule would require schools to respond meaningfully to every known report of sexual harassment and to investigate every formal complaint.
• The proposed rule highlights the importance of supportive measures designed to preserve or restore a student’s access to the school’s education program or activity, with or without a formal complaint. Supportive measures may include the following:
• Academic course adjustments
• Counseling
• No-contact orders
• Dorm room reassignments
• Leaves of absence
• Class schedule changes
• Where there has been a finding of responsibility, the proposed rule would require remedies for the survivor to restore or preserve access to the school’s education program or activity.
• The proposed rule would require schools to apply basic due process protections for students, including a presumption of innocence throughout the grievance process; written notice of allegations and an equal opportunity to review all evidence collected; and the right to cross- examination, subject to “rape shield” protections.
• Colleges and universities would be required to hold a live hearing where cross-examination would be conducted through the parties’ advisors. Personal confrontation between the complainant and respondent would not be permitted.
• To promote impartial decisions, schools would not be allowed to use a “single investigator” or “investigator-only” model.
• Under the proposed rule, if a school chooses to offer an appeal, both parties can appeal.
• Consistent with U.S. Supreme Court Title IX cases, the proposed rule defines sexual harassment as unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.
• The proposed rule adopts the Clery Act definition of sexual assault and includes it in the definition of sexual harassment under Title IX.”

See https://www.ed.gov/news/press-releases/secretary-devos-proposed-title-ix-rule-provides-clarity-schools-support-survivors-and-due-process-rights-all. The major provisions of the final version of the new rules are available on the Department’s website as well.

We should all applaud these new protections. We have seen decades of injustice in school investigations and processing of sex offense complaints by biased solo investigators or unqualified staff serving as pseudo-judges in serious matters affecting students’ abilities to rightfully pursue their educational and career goals. Yet this pathway to success is exactly what Title IX is supposed to protect: the educational opportunities of all students without the stifling injustice of sexism.

Instead, schools at all levels of education from K-12 to colleges and beyond have systematically deprived students of the right to counsel, the right to confront and question their accusers, the right to investigate all the evidence against them, the right to an impartial and qualified judge or jury of their peers, the right to a meaningful appeals process, and the right to reasonable procedural deadlines affecting all stages of the process. To rob a student of their educational rights without Due Process, regardless of whether they are an alleged victim or an alleged perpetrator, and regardless of their sex or gender, is a fundamental injustice that has no place in a civilized society.

It is this singular facet of civilization — Due Process — that separates us from despotic regimes such as those in North Korea, China, Russia, Iran, Saudi Arabia, Israel, Philippines, Angola, and so on. Imagine a society where you can be accused of committing a wrong; where you are never permitted the right to counsel or the opportunity to confront your accuser; where you are never permitted the opportunity to fully investigate the evidence against you; where in a matter of days your entire case is processed in a kangaroo court of biased officials at the whim of popular politics rather than faithful to the facts; and when you are invariably found guilty, you are swiftly deprived of life, liberty, and/or property.

It is exactly this fate that thousands of students have faced in our nation’s schools when accused of a sex offense, be it an unwelcome sexual comment to a classmate, discrimination, harassment, stalking, assault, or rape. If you yourself were confronted with such accusations, you would of course demand the right to a fair and impartial process of investigation and self-defense. Shockingly, you would be deprived of exactly this Due Process right at an otherwise fine educational institution in the United States of America. That must not be what we stand for as a nation.

We know that our country has struggled with sexism and racism since its inception by way of deeply bigoted words in the original Constitution that deprive Native Americans, African Americans, and women of basic rights, liberties, and even their very humanity. We have striven for over two centuries to correct these wrongs through cultural and legal challenges to discrimination. In this case, our nation has overcompensated by erring too much on the side of caution to the point of accepting accusations alone as damning evidence and depriving the accused of all protections of the law that our most honored heroes have fought so hard to create and preserve.

As we have seen in recent years, it has become politically popular to simply believe alleged victims under the silly #BelieveHer banner, no explanations or investigations required, until of course it is no longer convenient to do so (e.g., the silence of the #MeToo movement in the face of Tara Reade’s accusation against Joe Biden of sexual assault).

It is preposterous to suggest that alleged victims do not lie. Legal and psychological professionals all over the world can attest to the fact that so-called victims can and do lie. All people lie. We know this out of our own experiences. Why do we forget this when it involves the context of sex offenses on school grounds? Whether pseudo-victims lie out of some psychological illness related to narcissism, sociopathy, or other issue, or they do so to feel empowered, respected, or avenged, or for some other twisted reason which logical minds cannot fathom, false victims lie. Those lies can ruin lives, and they have and do.

So although I am no fan of Secretary DeVos’s hideous politics (nevermind those of her brother Erik Prince and his disgusting military defense and mercenary soldier company, Blackwater), I applaud this new Title IX rule change that seeks to bring justice to our schools and end the Kafkaesque chaos of biased and curtailed sex offense investigations that have ruined the lives of too many students seeking to better themselves through education.

Even a broken clock is right twice a day. Ms. DeVos’s support of Due Process rights in our schools is right on time.