Biden’s Title IX Rule Means More Due Process Nightmares

The California Supreme Court recently approved the University of Southern California’s (USC) 2017 decision to expel Matt Boermeester, then a star kicker for the football team. The Court said that the school’s Title IX process finding him guilty of “intimate partner violence” was fair, even though he had no formal hearing, no chance to confront his accuser, and no opportunity to cross-examine witnesses.

The case is a reminder that Title IX, the federal law banning sex discrimination in education but now used for complaints of campus sexual misconduct, is a due process nightmare. Congress should repeal this law and the country must stop pretending that ideological, university administrators  can be fair when they preside over politically charged cases, especially accusations of sexual assault, which belong in the criminal justice system, not in a college bureaucracy.

While many wrongly accused students have successfully sued their universities for due process violations in school disciplinary action – so this California opinion is an outlier – judges can also be part of the problem, too often deferring to a university’s partisan personnel. Lawsuits also take time, with favorable rulings coming too late for expelled students. But even worse than the courts – and of more immediate concern – is the Biden Education Department’s proposed new Title IX rule. If it takes effect (its release looks delayed), it will basically guarantee more campus kangaroo courts

The Boermeester case facts were mostly undisputed: Shortly after midnight on January 21, 2017, Boermeester and his girlfriend, Zoe Katz, also a student-athlete tennis player, were heard outside her apartment throwing French fries at each other, talking loudly and disagreeing on whether to drop the leash of Katz’s dog, Ziggy. Boermeester pushed Katz against a wall and put his hands on her neck, in what he called horseplay. Two students in the apartment building heard them, thought trouble was afoot and one went out to the trash bin to get closer, but by then Boermeester and Katz were disentangled.  Nevertheless, that student reported the incident to his coach, who was then required to report it to the campus Title IX office, led by Gretchen Dahlinger Means.

Means herself had become famous – well, infamous – the year before for calling another accused male student a “motherf*cker” when he appealed her decision to expel him, in yet another sexual misconduct case.  The judge there, Judge Elizabeth Allen White – found that Means was “adversarial,” served in improper roles and presented “an unacceptable probability of actual bias.” Judge White then found Means’s entire disciplinary proceeding had not been “fair, thorough, reliable, neutral and impartial.”

Means had also expelled another student who later sued USC, Armaan Premjee, where the evidence of sexual misconduct was so thin that a judge dismissed criminal charges before trial, telling prosecutors that the facts did not even establish a “reasonable suspicion” of guilt.

Means behaved in similar partisan fashion with Boermeester:  Once contacted about the January incident, Means was overheard saying she knew “how to handle football players.” Within five days she had Boermeester banned from campus, suspended from school and the football team, and a few months later he was expelled.  He had been two credits away from graduation.  Meanwhile, Katz herself recanted all her statements and accusations, saying the Title IX office report was “false,” adding that Means had actually bullied her, seeming to want only to “burn” Boermeester.

Given Means’s documented behavior in multiple cases, one would think that Title IX administrators like her would get more scrutiny, or would get less power on campus, or would be encouraged to find another line of work altogether.

But the opposite is true.  Most campus bureaucrats wield enormous power, a bit like a college “deep state.”  Northwestern University professor Laura Kipnis, herself accused of a Title IX violation for an essay she wrote, described Title IX staff as “drunk with power.”  But few observers give this on-the-ground reality the attention it deserves, though lawyers defending accused students know their zealotry well.  For example, a 2020 Report by the National Association of Scholars is unique in that it scrutinized Title IX personnel, finding that only one of the 57 officials surveyed had real, courtroom experience with due process, while virtually all of them came from novel, ideological disciplines hostile to men such as “Gender Based Violence” and Women’s Studies.  With shepherds like these, who needs wolves?

Incredibly, Biden’s proposed Title IX rule would increase the power of these ideologues by allowing a return to what’s called the single-investigator model – now called the “individual meeting” method – the very approach that prompted so many lawsuits, including Boermeester’s. (He actually sued USC in both state and federal court.) Notably, the California Supreme Court said nothing about Title IX monster Gretchen Means. Why? One explanation is the single investigator model itself. Means’s statements about Boermeester came out in his federal lawsuit, not the one in the California state courts. And who compiled the record subject to state court review?  Gretchen Means herself, of course. So therein lies the rub. In the single investigator model, one person conducts interviews (or refuses to conduct interviews), writes summaries with relevant facts (or without relevant facts) and then recommends punishment.  In this way, Means’s own partiality – for example, her refusal to contact Boermeester’s witnesses – may never appear in the record.

Thanks to President Trump, if Boermeester’s case had happened in 2020 or after, he would have had a live hearing with cross examination and also a representative at that hearing to call out administrator bias. That’s because Trump’s Title IX Rule, which took effect in 2020, requires these due process basics. It is this rule that the Biden proposal would replace.

The Trump rule is also in sync with most federal courts. The Second Circuit, for example, recently faulted Cornell University for depriving an accused professor of due process during a Title IX complaint, likening campus adjudications to infamous English Star Chambers. By contrast, the California opinion wants universities to continue to have “broad discretion” in Title IX administration, a recipe for disaster. It should be obvious that schools should have less discretion and more formality in these cases since important rights and reputations are at stake. A summary written by an ideological school administrator, for example, has zero credibility, especially when compared to a live hearing with transcribed testimony.

The Biden rule’s delay is a good sign for due process advocates. But the problem is deeper that any one rule, whether Trump’s or Biden’s. The problem is on the ground, in the college deep state. And the real fix must come from Congress which should repeal Title IX, a law that now does way more harm than good.

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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: Members and supporters of the Women's Basketball Coaches Association demonstrated several times during the two semifinal games of the Women's Final Four at Target Center in support of Title IX by holding up signs in the stands. (Photo By JOEY MCLEISTER/Star Tribune via Getty Images)