Law & the Courts

Coronavirus Is No Excuse to Delay the Education Department’s New Title IX Regulations

An empty lecture hall in the Palazzo Nuovo University of Turin after the government’s decree closing schools and cinemas and urging people to work from home and not stand closer than one meter to one another, in Turin, Italy, March 5, 2020. (Massimo Pinca/Reuters)
Those making this argument are taking advantage of a crisis to try to keep due process out of college campuses.

Many disingenuous things have been said during the coronavirus crisis, some of them by the president of the United States himself. But right near the top must be three letters issued last week — from the American Council on Education (ACE), activist groups led by the National Women’s Law Center (NWLC), and 18 Democratic attorneys general — calling for the Department of Education to halt the release of long-anticipated regulations that will restore due process to the handling of sexual-assault cases on college campuses. DeVos’s proposed rule would ensure basic rights for accused students — notice, access to evidence, a live hearing, and the ability to have a lawyer or advocate cross-examine adverse witnesses — that are often or almost always absent in the current Title IX process imposed by Obama-era guidance. That system has yielded more than 170 university setbacks in lawsuits filed by accused students in state or federal court.

In its letter, ACE argued that “at a time when institutional resources already are stretched thin, colleges and universities should not be asked to divert precious resources away from more critical efforts in order to implement regulations unrelated to this extraordinary crisis.” The NWLC letter spoke similarly, but leaned harder on the supposed harm to students: “Finalizing the proposed rule would also unnecessarily exacerbate confusion and uncertainty for students who are currently in pending Title IX investigations and hearings, which have already been delayed and disrupted by the pandemic.” The letter from the attorneys general expressed similar language.

While it’s hard not to admire their chutzpah, their arguments are provably nonsense.

First, the universities have known for more than 16 months — since November 2018 — that these regulations were coming. They have had ample time both to tell the government what they think of the regulations and to start planning for their inevitable release. If some of them have failed to plan ahead, hoping that the regulations would never be released or that a lawsuit by victims’ groups would enjoin them immediately following their release, that isn’t the fault of the coronavirus.

Second, do you know who’s going to have a lot of time on their hands in the next six months?  Title IX coordinators. Why? Because the number of Title IX cases is about to drop precipitously.

In recent years, schools have been more interested in staffing their Title IX offices than their humanities departments. The Title IX coordinator at the University of Michigan, whose 2018 sexual-misconduct policy a federal judge recently declared unconstitutional, earns $139,000, overseeing five Title IX investigators who earn almost $500,000 together. And as any Title IX coordinator can tell you, Title IX cases are fueled by college students’ being in close proximity to each other, often with alcohol nearby. Take away the proximity and the alcohol, and you take away the vast majority of Title IX cases. Moreover, figuring out how to implement these regulations can easily be handed on Zoom calls.

The real reason colleges might want to avoid remote meetings is that they might produce a more permanent record that in-person meetings can avoid. That’s what happened in 2017 at St. Joseph’s University. Because a Title IX official was on maternity leave, some of the school’s meetings about Secretary DeVos’s interim 2017 guidance occurred virtually. The university decided to keep its pre-2017 policy, even as communications between St. Joseph’s administrators and the absent Title IX official produced a record acknowledging their procedures might have run afoul of the due-process requests in the guidance.

So this is, in fact, the perfect time for the Education Department to implement the new regulations.

Third, it’s clear that these interest groups — and their political allies — are just trying to delay long enough for a new administration possibly to take over. The coronavirus crisis is unlikely to recede completely before the 2020 election. If Joe Biden wins, he will withdraw the proposed regulations immediately, which will be much harder to do if they’ve actually been implemented.  ACE and the NWLC know this, which is why they’re making this argument now. Seeing them exploit the coronavirus to run out the clock brings to mind the old quote from a cartoon in The New Yorker: “How about never — is never good for you?”

And you don’t have to take our word for it. ACE president Ted Mitchell called these new regulations “a step in the wrong direction,” saying they would “impose[] a legalistic, prescriptive ‘one-size-fits-all’ judicial-like process” on universities. The NWLC was even more blunt, calling the proposed regulations “disastrous,” “confusing and illogical,” and “devastating for survivors” (emphasis in original), and even opining that “‘due process’ is clearly a red herring.”

This is all nonsense. The new Title IX regulations may wind up being Betsy DeVos’s greatest legacy. They will finally restore balance and fairness to a process that, due to the Obama administration’s overreach, had little of either.

The time is now. Let’s hope the administration issues these regulations soon and ignores this galling attempt to twist a genuine crisis for political ends.

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