With accusations of sexual misconduct front and center for the second presidential election in a row, it may be hard to believe that the U.S. is making progress on this serious issue. But on Wednesday, the Education Department brought Americans a step closer to having such allegations tried more thoroughly and fairly—at least on college campuses.
More than a year after issuing a draft rule, the department released final regulations on how colleges and universities must treat students involved in disciplinary procedures under Title IX, the federal law that bans sex discrimination—and has been interpreted to include sexual misconduct—in federally funded education programs. Institutions will finally have to guarantee due process for students caught up in campus kangaroo courts.
Consider the presumption of innocence. The most recent survey of due process protections at U.S. News’s top 53 national universities by the Foundation for Individual Rights in Education determined that 72% of them—including Georgetown and Caltech—didn’t explicitly tell accused students that they are presumed innocent until proven guilty. The new rules will correct this abuse.
Current law requires campuses to investigate even felony-level sex crimes like rape and sexual assault; they may not simply be turned over to police and courts. Yet university investigations and hearings under Title IX lack thoroughness and impartiality. Students struggle to navigate proceedings without the rights to receive written notice of the exact charges, to see all relevant evidence (including exculpatory evidence), to cross-examine accusers and witnesses through a lawyer or other adviser of one’s choosing, and even to a live hearing.
None of these protections are unusual off campus. All are routinely denied on campus. More than 40% of top colleges don’t even specify that their equivalents of judges and juries must be impartial. This madness will end when the rules take effect.
Crucially, the department relies on the Supreme Court’s standard from Davis v. Monroe County Board of Education (1999) to advance a fair definition of student-on-student sexual harassment: “Unwelcome conduct [on the basis of sex] determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” This is a substantial improvement over the current patchwork of rules, which invite censorship of speech or behavior that is both constitutionally protected and not harassment. In Title IX’s name, colleges over the years have banned what they characterize as “derogatory cartoons,” “innuendo” and “sexually suggestive statues.” Students and professors’ political, academic and artistic speech deserves protection.
These new, much-needed rules have encountered bitter opposition from those most invested in the current system: college administrators and activist groups. University lobbyists have cited the Covid-19 pandemic as a reason to delay policy changes, but they’ve had nearly 18 months to prepare since Education Secretary Betsy DeVos opened the proposed Title IX rule to public comment. A Tulane University Title IX coordinator’s Instagram video provides insight into a behind-the-scenes effort to influence the regulations; evidently a “delay strategy” of endlessly requesting meetings with regulators was responsible for having “pushed that date back.” And the fight continues: On Wednesday, the National Women’s Law Center tweeted that it’s “preparing to sue the Department of Education” to stop the rules from taking effect.
These vested interests can’t distract from a broader reality: From liberal Harvard law professors to social conservatives, many agree that the current Title IX system on campus is profoundly broken. The Education Department’s moves reflect an existing consensus that fairer procedures are necessary.
Joe Biden—who needs voters to extend the presumption of innocence to him—is unfortunately on the wrong side of this issue. Long a leading proponent of stricter Title IX enforcement, he has promised to restore the Education Department’s infamous 2011 “Dear Colleague” letter, which Mrs. DeVos withdrew in September 2017. That letter’s unlawful mandates, sprung on colleges without the legally required notice and comment, kicked off the current era of abusive enforcement. It also invited tuition-bloating absurdities like Harvard’s 50 Title IX coordinators and Northwestern’s monthslong investigation of a professor for allegedly violating Title IX by criticizing Northwestern’s Title IX policy.
Barring courtroom shenanigans or noncompliance on the part of universities, students will soon benefit from a considerably fairer system of campus justice. Yet political winds are always shifting, and there is little doubt that campus authoritarians, given a chance, will revive the kangaroo courts that let them exercise unaccountable power over students’ lives. One can only hope that—should he take office in January—a chastened Mr. Biden will rethink his stance on this issue.
Mr. Shibley is executive director of the Foundation for Individual Rights in Education.