#Biden bid to ‘believe all women’ will meet its match on campuses

The Biden administration has opened the door to reviewing and perhaps discarding the new Title IX rule, issued under former Education Secretary Betsy DeVos. Supposedly the DeVos Rule is “controversial.” Of course it is, to the extent that campus zealots regard due process for the accused as controversial. But it’s a phony controversy. 

The DeVos Rule, which applies in cases of sex discrimination and misconduct in education, merely clarifies that those accused of misconduct get basic fairness in student disciplinary proceedings. Those basics include the presumption of innocence, the right to see evidence and the right to question witnesses. Without such bare-bones due process, any finding of fault for anything would be bogus and more akin to a “verdict first, trial later” outcome — that is, an inquisition. 

The rule is dubbed “controversial” because feminist ideologues say so. Angry at biological reality and the physical differences between men and women which make sex more consequential for the latter, they blame and bash men — “toxic masculinity” — and try to “fix” nature by making sexual encounters riskier for guys. What risk do they add? The risk that she gets to level an accusation of sexual harassment after the fact, knowing that accusation alone in many cases means conviction, a k a “believe all survivors.” 

Title IX is the 1972 federal equal access law guaranteeing Americans educational opportunity free of sex discrimination. This once benign policy has been hopelessly weaponized by radical Democrats who used it, first, to warp student athletics — cutting male sports and propping up female ones — and then to upend student romance by encouraging sexual hedonism in a minefield where any misstep, dissatisfaction, or regret could result in a Title IX discrimination complaint which might well brand those accused as sex offenders, often for life. 

This latter project was largely the brainchild of Catherine Lhamon, former education official under President Barack Obama, now chair of the US Commission on Civil Rights and deputy director of the White House Domestic Policy Council for Racial Justice and Equity. Her infamous April 2011 Dear Colleague Letter announced by fiat that all sexual violence constitutes Title IX sex discrimination and thereby transformed Title IX from a reasonable nondiscrimination policy into the go-to cudgel of campus sex wars. She gave angry feminists the advantage of gutting fundamental fairness. The letter, which bypassed all regulatory checks and balances, invited Title IX officials to summarily eject accused students from campus based on a mere accusation. It imposed the lowest possible burden of proof for a finding of fault and threatened to cut off federal funds from any school that did not “get tough” on sexual harassment, however defined. 

Since 2011, pushback on such “law by redefinition” has been loud and clear. Objectors denounced the fact that unaccountable bureaucrats were suddenly in charge of policymaking instead of Congress. They began a fight with what we have learned to call the administrative state. Other objections came from wrongly accused male students, who took to the courts to claim their due process rights had been squashed. Often they prevailed in court where they couldn’t on campus, and even liberal-leaning judges expressed dismay at the college witch hunts. 

Soon the accused students were joined by a brigade of Moms. Here, angry feminists met their match in another group of angry women, many of whom saw their decent sons smeared, railroaded and expelled while being labeled “rapists” because of a once willing woman who later regretted her voluntary sexual encounter. These Moms formed groups like “Save Our Sons” and Cindy Garrett’s FACE (Families Advocating for Campus Equality) and became vocal supporters of the DeVos Rule, which not only ensures due process basics but also guarantees supportive measures for any complainant — regardless of the merit of a complaint. In this way, the Rule actually goes far to protect daughters as well as sons. 

It is this Rule that is wrongly called “controversial” and which the Biden administration is now poised to rescind. 

Such rollback efforts are not only wrong but likely to fail. These same key constituencies — mothers, judges and critics of the administrative state — are more prepared than ever to fight back. And they are not going away. Indeed, judges have found in favor of due process protections in more than half of the 600 cases filed against schools by wrongly accused students. And every court to review the new Title IX Rule has found it lawful and fair. How is the Biden administration going to overcome these precedents and defeat these constituencies? 

It won’t. But Biden will do his best to put on a show for the blame-men-for-everything crowd. 

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.