Home People A ‘Step Backward,’ Indeed – Noah Rothman, Commentary Magazine

A ‘Step Backward,’ Indeed – Noah Rothman, Commentary Magazine

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We’re privy to a lot of talk about the Constitution these days: what’s in it, what’s not in it, and what partisans want to be read into the jurisprudence around it. The Americans who are outraged by the Supreme Court’s decision overturning Roe v. Wade presumably disagree with the majority decision’s logic, which dismissed the idea that the 14th Amendment’s due-process clause conferred a constitutional right to abortion. Opponents of this decision (and a few supporters) have inferred that its logic imperils many other “implied” rights also derived from the same clause.

Many of these jealous guardians of the unenumerated privacy rights that the Courts have read into this vital constitutional amendment have, however, displayed nothing short of contempt for the Constitution’s plainer text. This contingent does not see the Bill of Rights’ proscriptions against unreasonable searches or seizures and self-incrimination or individual rights to a jury of one’s peers and legal counsel as so inviolable so long as the cause justifying their violation is sufficiently just.

How else are we to assess the Biden administration’s eagerness to revive dubious Obama-era changes to Title IX of the 1972 Education Amendments? In a statement in support of the White House’s proposed rule changes, the administration lashed out at its predecessor’s Department of Education, which amended Title IX to provide more protections for students accused of criminal sexual misconduct. “Those regulations weakened protections for survivors of sexual assault and diminished the promise of an education free from discrimination,” the Biden administration’s Education Department alleged. The new guidelines, currently undergoing a period of public comment, will restore the unjust status quo ante.

In April 2011, the Obama administration produced a “Dear Colleague” letter outlining the processes to which colleges and universities must appeal when adjudicating claims of sexual misconduct on campus. Institutions would risk losing access to federal funding if they did otherwise. Those new guidelines established a “preponderance of evidence” standard for assessing an accused student’s guilt—a markedly lower threshold for concluding an individual’s criminal culpability than the “beyond a reasonable doubt” standard applied by the courts. Donald Trump’s Education Secretary Betsy DeVos replaced this lower standard with the requirement that colleges prove the claims against a student with “clear and convincing evidence,” meaning that it must be “highly probable and reasonably certain” that sexual assault or harassment occurred. She had little choice given the growing number of injustices the 2011 Dear Colleague letter had wrought.

Under the Obama-era regime, both alleged victims and their alleged victimizers saw their constitutional rights abridged. Individuals were compelled to defend or prosecute their own cases in the quasi-legal venues that colleges were compelled to establish. Genuine abusers had their so-called “convictions” in these chambers overturned by real courts, which had no choice but to acknowledge the abridgment of their constitutional rights. The accused were denied their right to confront their accusers. Friends and partners were compelled to testify against each other in response to claims of misconduct brought by third parties. And the institutions of higher learning that abided by these guidelines had to pay out millions of dollars in damages to the students who were denied their constitutional rights.

One of the methods the Trump administration employed to prevent these abuses was to compel colleges to provide a live hearing where accused and accuser can confront each other, the evidence, and their respective witnesses. The activist left deemed this provision, which was designed to comport with the Constitution’s Confrontation Clause, too traumatic. “No survivor should be cross-examined by his or her accused rapist,” former Rep. Joe Kennedy declared. “Betsy DeVos would require universities to allow accused sexual abusers to cross-examine and re-traumatize their victims,” End Rape on Campus executive director Jess Davidson declared. The Biden administration has dutifully dropped this provision. The new guidelines now permit but do not require such a hearing.

“If a public university has to choose between competing narratives to resolve a case,” Judge Amul Thapar wrote for the Sixth Circuit in a 2018 judgment against the University of Michigan, “the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.” Activists disagreed, judging cross-examination “not essential.” The activists won the argument.

The restoration of this unjust standard will force colleges to pretend once again to serve as courts with all the attendant injustices and mistakes. That would be bad enough, but the new Title IX guidelines also write voguish notions of gender fluidity into the rule, and this will further complicate matters for America’s beleaguered non-faculty administrators. The word “sex” in Title IX is now understood to mean “gender” and “gender identity.” And while the guidelines punt on the contentious issue of athletics and a “students’ eligibility to participate on a particular male or female athletic team,” it would prohibit “policies and practices that prevent a student from participating in a recipient’s education program or activity consistent with their gender identity.”

It’s hard to envision any subsequent move by the Education Department on athletics that ignores the standard it has established for every other on-campus activity. Such a rule would undermine Title IX’s raison d’etre. In the early 1970s, this anti-discrimination statute was quickly interpreted to include women’s sports and the dramatic funding and participation imbalances that favored male athletes on campuses. If faithfully implemented, it’s not hard to imagine how the new Title IX guidelines will result in a cascade of discrimination lawsuits targeting both colleges and the Biden administration.

We’re hearing a lot from the politicians courting the progressive left about how the Supreme Court’s decision in Dobbs represents “a step backward for women’s rights and human rights.” Their inconsistency when it comes to Title IX suggests they don’t mean a word of it.



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