On May 5, 2020, the U.S. Department of Education under Betsy DeVos and President Trump issued new rules governing Title IX, the federal law passed in 1972 to address discrimination on the basis of sex in federally funded educational institutions. The new rules were adopted to address the Obama-era edicts that, according to George Leef of the James G. Martin Center for Academic Renewal, "dramatically changed the way [sexual assault or harassment] cases were handled by stacking the deck against accused students, almost always male." The Obama administration regulations mandated that sexual misconduct cases be treated differently than all other discrimination cases, although Title IX allows institutions to treat them all the same.

The Obama rules were established by a document known as a "Dear Colleague" letter rather than through a formal rulemaking process. It effectively dismantled the rules that were in place during the Clinton and Bush administrations, and essentially denied defendants in a sexual assault or harassment case due process. Accused students were not allowed legal representation, nor were they informed of the precise charges against them. They were not permitted to see the evidence against them, and did not receive sufficient time to prepare a defense. There was no guarantee they would be tried by an impartial judge or jury. The new rules, while decried by those on the left, merely restore a semblance of fairness and due process.

Leef isn't alone in his favorable opinion of the new rules. The Foundation for Individual Rights in Education (FIRE), applauded the changes, noting that the Obama-era rules were "designed to serve a political purpose." Those regulations allowed an accuser the right to appeal an unfavorable decision, but not the accused. "With the new rules," observes FIRE, "schools must use a three-person system—one officer to receive complaints, another to interview people and gather facts, and a third to decide the question of guilt and recommend sanctions and remedies." The Obama rules allowed for a single campus administrator to handle the entire case, from fact-finding to determination of guilt, with that person typically on the side of the accuser.

The American Enterprise Institute (AEI) also lauded the rules change, saying DeVos "gets Title IX right." In a May 7 blog post, AEI noted: "Deprived of due process and without other recourse, expelled students started filing lawsuits against universities for violating their due process rights... U.S. federal and state courts ruled against universities over half the time. Something clearly had to be done."

The Left Prepares for Battle
While most fair-minded observers concede that the new rules adopted under the DeVos Education Department merely right the ship in sexual harassment cases, the left is preparing for battle. Among the criticisms are that the new regs "gut Title IX protections for students" and that they "mandate different treatment" for sexual harassment cases than for racial discrimination cases. FIRE explains that neither criticism is true:

"Under the new regulations, institutions will no longer be required or encouraged to provide respondents in sexual misconduct cases fewer free speech and due process rights than they have been providing respondents in non-sexual misconduct cases. With both parties guaranteed many safeguards that they do not receive on most campuses now, fact-finders will be better equipped to reach accurate, reliable findings, whether they're responsible findings or not responsible findings. Procedural safeguards help ensure more innocent students are not punished and more guilty students are punished. They bring the focus of the regulations back to the original purpose of Title IX—ensuring equal access to education."

These commonsense observations, which become obvious when actually reading the regulations, are so far being lost in a sea of inflammatory rhetoric. DeVos is being accused on Twitter of "taking us back to the bad old days when it was permissible to rape and sexually harass students with impunity," and that "this is the wrong time to finalize these regulations" given the COVID-19 pandemic. Still others are charging that the rules were enacted "quietly," as though DeVos and her department had not openly worked on them for 18 months and reviewed more than 120,000 comments during the process.

Predictably, Democrat Presidential Candidate Joe Biden has vowed to restore the Obama rules if he is elected president. According to AEI, Biden accused the new regulations of "giving colleges a green light to ignore sexual violence," while Democrat Senator Patty Murray claimed that the new rules are all about "silencing survivors." Nancy Pelosi chimed in, accusing DeVos of "attacks on the civil rights of students."

When Biden was facing accusations of sexual assault recently by his former aide Tara Reade, the left was insistent about the importance of following "due process." Now, as due process is being restored to college students accused of sexual misconduct, they are singing a different tune.

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