Biden’s Title IX Focus Is Wrong and Wasteful

For the wasteful and wrongheaded use of taxpayer dollars, look no further than the Biden Administration’s plans for Title IX, the federal law banning sex discrimination in federally funded schools and now used to address sexual harassment on campus. 

Last month, Catherine Lhamon, the Education Department’s assistant secretary for the Office for Civil Rights (OCR), which administers Title IX, announced her plans to start the formal rule-making process to amend Title IX regulations. Lhamon is well known in policy circles, having served in this same role under President Obama when she oversaw “campus kangaroo courts” or college Title IX tribunals where anyone accused of sexual harassment was presumed guilty and often expelled or suspended based on a mere complaint.

Lhamon also implemented the now-infamous 2011 “Dear Colleague” letter, which lowered the burden of proof to facilitate findings of fault in Title IX complaints. The letter was widely denounced as an end run around public involvement in rule-making, which would have been required had her office followed the formal steps of the Administrative Procedures Act. The letter turned out to be an ill-advised and bungled order from on high, resulting in more than 500 lawsuits against schools by students—mostly male—claiming they were denied due process and then wrongfully branded sex predators.

President Trump’s education secretary, Betsy DeVos, inherited this Title IX mess in 2017 and, to her credit, tackled the problem head-on by withdrawing the “Dear Colleague” letter and by starting a formal regulatory process with multiple public hearings, eliciting more than 124,000 comments. In May 2020, DeVos’ OCR issued a Title IX rule that requires, among other things, that schools receiving federal funds address sexual harassment when a formal complaint is made. It also requires schools to provide support for the complainant as well as due process for the accused, including the presumption of innocence. The rule took effect in August 2020 despite several unsuccessful court challenges to block it.

Lhamon’s newly announced initiative not only threatens these due process gains but wastes government time and money. After all, DeVos just completed this process, including a three-year Title IX inventory. Anyone who wanted to be heard had the chance to do so between 2017 and 2020—and more than 100,000 were.

What’s more, if it ain’t broke, why fix it? The DeVos rule is a success story that strikes a reasonable balance among the competing interests of complainants, respondents, and schools. During the public comment process, for example, the issue of cross-examination of complainants was intensely debated since such questioning is considered critical to test the truthfulness of allegations. But the possible discomfort of a complainant also had to be considered—and it was. The new regulation ended up allowing cross-examination but only if conducted by a representative of the accused. Also, such questioning must take place in a separate, private room if requested. In sum, the rule reflects compromise acceptable to most—probably the best that can be done. And every court to review it has found it reasonable and lawful.

But now, after all this methodical, deliberative, and good faith work by DeVos and her staff, Lhamon wants to start the process all over again, less than two years later? 

Don’t these government bureaucrats have anything better to do with their time than duplicate the exact efforts of their predecessors?

In fact, yes. While Biden’s OCR sees Title IX as a weapon in the campus sex and gender wars, the most pressing issue of sex discrimination in education today is actually not sexual harassment or hostility toward women. The current problem is bias against men.

University of Michigan Professor Mark Perry has become a lead authority on this phenomenon and reports filing over 400 complaints in recent years regarding seemingly ubiquitous “women only” programs on campus such as Girls Who Code, “Femineers,” and leadership outreach for women in business. All these are prima facie violations of Title IX, which requires equal access to educational opportunity regardless of sex. Perry reports that most schools will open such programs to everyone when they receive complaints like his, but he can’t keep up with female-only favoritism.

This bias towards women in education makes no sense—especially now, when men are abandoning college and university in record numbers, a trend that began as early as the 1970s, not long after Title IX was passed, and has accelerated sharply since then. While college now enrolls fewer students than five years ago, men account for 70 percent of this decline.

The reasons for this have yet to be thoroughly researched, though major media outlets have already taken note. One obvious contributing factor is the overrepresentation of overtly anti-male feminists on campus, especially on faculty (conservatives, especially conservative women, are almost missing from post-secondary teaching) and their simplistic and hostile attitude toward men, all too evident in the popular phrase “toxic masculinity.” (Anyone ever heard of “healthy masculinity”?)

If Catherine Lhamon wants to prove herself a true professional who cares about the civil rights of all, to say nothing of making amends to those who suffered under her leadership last time-around, she has the opportunity to do so now by investigating and trying to stop the exodus of men from American higher education. 

But one fears she’s not that kind of person and cares more about her ideology than real civil rights.

And that’s why her Title IX focus is all wrong.

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About Teresa R. Manning

Teresa R. Manning is the policy director at the National Association of Scholars and a former law professor at Scalia Law School, George Mason University.

Photo: Catherine Lhamon, July 13, 2021. (Photo By Tom Williams/CQ Roll Call via Getty Images)