Joe Biden Abandons Due Process

Y ou wouldn’t expect your worst critic to defend your reputation. And you wouldn’t trust an opposing team to present your case to an umpire or referee. Likewise, you wouldn’t trust the Biden administration to defend one of the signature achievements of the Trump administration. But that’s the perilous situation we are in today when it comes to the fate of Title IX reforms in federal court.

Prior to Trump’s Title IX reforms, many students and faculty members were subjected to suspension or expulsion without even basic due process. Instead, a single biased university administrator could try and convict an accused student without that student’s receiving aid from an adviser or lawyer. At times, the administration would not even tell the accused who their accuser was, or what they were accused of. Many of the accused lost jobs, lost livelihoods, and lost their reputations.

The Trump administration, and in particular Secretary of Education Betsy DeVos, changed things. In May 2020, after more than a year of considering and responding to over 120,000 comments from members of the public, the U.S. Department of Education issued final regulations addressing sexual harassment in schools under Title IX, which generally bars schools from discriminating on the basis of sex.

The new regulations were balanced. On the one hand, protections against sexual harassment were enshrined in federal regulations under Title IX for the first time. On the other hand, students and staff accused of sexual harassment finally had a right to due process before they could be disciplined, expelled, or fired. The regulations won praise from unlikely voices across the political spectrum, including a group of feminist law professors at Harvard University, who acknowledged that many college students had been railroaded through kangaroo campus procedures on their way to expulsion.

Nevertheless, activist groups critical of then-secretary DeVos promptly sued. And Joe Biden, despite being accused himself of sexual assault by a former staffer, Tara Reade — allegations he denies — opposed the due-process measures gained under the new regulations. “It’s wrong,” then-candidate Biden stated in May 2020, in a tweet that made headlines, “and, it will be put to a quick end in January 2021.’”

The fastest way to that “quick end” was always for the Biden administration to intentionally lose a lawsuit challenging the new Trump-era regulations. Unfortunately, that appears to be the White House’s current plan.

Last year, anticipating that we might be where we are now, due-process advocates took action to support the Title IX regulations. In one lawsuit filed in Massachusetts, the Foundation for Individual Rights in Education (FIRE), a free-speech-advocacy organization, tried to join a lawsuit by filing a motion for intervention. FIRE wanted to help defend the validity of the new Title IX regulations that Secretary DeVos had issued. But so far, lower courts have denied FIRE’s efforts, saying that the government can defend its regulations by itself. FIRE recently petitioned the Supreme Court to reverse those denials. My organization, Mountain States Legal Foundation, filed a brief with the Supreme Court supporting FIRE’s petition.

Unfortunately, despite FIRE’s pending appeal, the trial court went ahead and ruled on the underlying lawsuit. It held that one part of the new regulations was invalid and sent it back to the Department of Education to reconsider the issue. But, of course, the folks who drafted the 2020 regulations are now gone, and the agency is firmly in the control of Biden’s political appointees. Indeed, Biden’s pending nominee for the Office for Civil Rights, Catherine Lhamon, smeared the 2020 regulations, claiming that they made it permissible to “rape and sexually harass students with impunity.” Does that rhetoric sound like it’s coming from someone who is in the right state of mind to responsibly “reconsider” those very regulations?

Biden’s Department of Education has already announced it won’t appeal the judge’s ruling, and it plans to throw in the towel on the effort to preserve a key component of the Trump-era due-process reforms. That’s hardly surprising. You wouldn’t expect the enemies of due process to defend it.

Now that the Biden administration is acknowledging that it’s taking the “L,” the state of Texas has also filed to intervene in the case. But with FIRE’s appeal pending and the outcome of Texas’s action still to be decided, the Biden administration currently remains the sole party in a legal position to appeal the striking down of the 2020 regulations. It is critical that FIRE or the state of Texas be allowed to do the job the Biden administration is unwilling to do.

Unless FIRE or Texas is allowed into the case, a vital part of the new Title IX regulations will likely die. Already, the Supreme Court has ordered the parties to respond to FIRE’s petition. Let’s hope that the Court goes further and lets FIRE into the case. Otherwise, badly needed Title IX due-process reforms — which took years to achieve — may simply disappear.