The Biden Administration’s Department of Education (DOE) is making plans to reverse Title IX regulations that had been implemented by the Trump Administration to more greatly protect free speech rights in education.
The Daily Caller reports that the soon-to-be-unveiled rewrite by the Office of Civil Rights (OCR), focusing on Title IX of the 1972 Education Amendments, will roll back the Trump-era rules dictating that public schools, from K-12 to college, must investigate claims of sexual misconduct in a fair an unbiased manner. The rules implemented by President Trump allowed greater rights to both the accused and the accuser in such cases, including the right to be represented by counsel, the ability to cross examine witnesses, and the presumption of innocence.
Legal experts said that the rollback, which would return to Obama-era Title IX standards, will essentially revert to a “guilty until proven innocent” approach towards accusations of sexual misconduct in education. Under those rules, accusations were treated as instances of unlawful sex discrimination, and were approached from a regulatory, rather than a legal, perspective.
When the Trump Administration revised the guidelines, the process became “quasi-judicial proceedings,” according to Senior Legal Fellow at the Heritage Foundation Sarah Perry.
“It ultimately returns Title IX back to a guilty until proven innocent standard,” Perry explained, “as opposed to leaving it to one Title IX investigator to determine who was right and who was wrong, in a ‘he said, she said’ proceeding.”
Cherise Trump, executive director of Speech First, warned that the reversal could lead to a return in charges of “harassment” being weaponized even beyond sexual misconduct, and instead being more broadly used to crack down on political speech that some students are offended by.
Cherise Trump said that the Trump-era rewrite of the regulations sought to adhere to a Supreme Court precedent referred to as the Davis Standard, which determined that “student-on-student harassment must be so severe, pervasive, and objectively offensive that it can be said to deprive its victims of access to a school’s educational programs or activities.”
“This is a pretty high threshold that protects students from being accused of harassment for simply voicing their opinions and possibly offending someone with their ideas,” she continued. Universities may change the wording to a “broad-sweeping definition” such as changing “severe, pervasive, and objectively offensive” to “severe, pervasive, or objectively offensive.” Even the slight change from “and” to “or” could allow school administrators to crack down on political speech that is in the minority on campus, under the guise of offensive speech being falsely labeled as “harassment.”
A coalition of 15 Republican-led states released a joint statement expressing concern for the Biden Administration’s plans.
“Hundreds of successful lawsuits against schools for denying basic due process and widespread criticism from across the ideological spectrum arose from the Obama-era rules“ the statement read. “The rules also resulted in a disproportionate number of expulsions and scholarship losses for black male students.”