Unlawful: SAVE Calls on Lawmakers to Reject Biden Title IX Proposal

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Rebecca Stewart: 513-479-3335

Unlawful: SAVE Calls on Lawmakers to Reject Biden Title IX Proposal

WASHINGTON / June 27, 2022 – A robust body of American case law undergirds due process and free speech at colleges and universities. Unfortunately, the Title IX policy recently proposed by the Biden Department of Education (1) ignores and effectively overturns much of this case law, ignoring key protections enumerated in the First and Fourteenth Amendments.

The body of Title IX case law includes 145 decisions by trial courts, 29 holdings by appellate courts, and one Supreme Court decision (2). The case law has continued to expand in recent months, with appellate findings against the University of Denver, Cornell University, and Harvard University for violations of fair procedure (3).

Following are examples how the Biden proposal sidesteps these judicial decisions:

The Biden plan would allow the same official to serve as both the investigator and decision-maker, what is known as the “single-investigator” approach. Conflating these two roles constitutes a conflict of interest and leads to biased investigations. Indeed, 47 judicial decisions specifically highlighted the problem of investigative bias.
Under the proposed rule, respondents would be allowed access only to a “description of the relevant evidence,” which could be provided either “orally or in writing.” But 27 judicial decisions called out schools for restricting student’s access to relevant evidence.
The Biden approach would dispense with cross-examination and hearings. Instead, adjudicators would be permitted to ask their questions “during individual meetings with the parties.” But 38 judicial decisions highlighted schools’ lack of adequate cross-examination procedures, and 24 decisions specifically called out the failure of schools to assure adequate credibility assessment of the parties.

The over-reach of the Department of Education policy is most apparent in its proposed definition of sexual harassment. In Davis v. Monroe, the Supreme Court defined sexual harassment as “harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” (4)

In contrast, the Department of Education is proposing to dramatically expand the definition of sexual harassment to be “conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate” in their education. This broad definition means that any comment or gesture that is “subjectively” offensive could trigger a Title IX complaint, and is certain to curtail campus free speech.

The proposed Biden plan also violates many provisions found in state-level campus due process laws, which are enumerated on the SAVE website (5).

A recent Wall Street Journal editorial decries, “By proposing to jettison fair proceedings, the Education Department is setting colleges and universities on a collision course with the courts.” (6)

The Department of Education’s Title IX proposal is flawed in its over-arching disregard for due process and fairness, and is antithetical to democratic ideals of free speech. SAVE calls on lawmakers to reject the Biden Title IX proposal.

A listing of media outlets, lawmakers, organizations, and commentators who have already expressed opposition to the Title IX proposal is available online (7).

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