KC Johnson points out that the new Title IX regulations are in part a response to
the reality of the last seven years, during which universities have been almost entirely unwilling to create fairer procedures, even when courts pressure them to do so.
To take the most spectacular example: in September 2017, the Sixth Circuit (which includes Michigan, Ohio, Kentucky, and Tennessee) issued a decision requiring schools to adjudicate sexual-assault cases with a hearing and some form of cross-examination. Yet, as recently as this summer, 19 public universities in the circuit—including Michigan, Michigan State, and Louisville—had refused to follow the ruling. As Judge Julia Smith Gibbons, exasperated, informed the University of Michigan’s lawyer: “I can’t get past the university’s indifference, defiance, or whatever you want to call it, to our Circuit precedent and to the basic principles of due process.”
I defend the new regulations at Bloomberg Opinion today, noting that they don’t just advance due process; they also protect free speech.