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‘A ringing indictment of unfair procedures’ at their own universities

Responding to a lawsuit by several state Democratic attorneys general, nearly as many of their Republican counterparts are coming to the defense of the Department of Education’s new Title IX rules.

Fourteen top law enforcement officials, from Alaska to Florida, argued that the final regulation on sexual misconduct creates “reasonable standards for fighting gender discrimination in education,” while also providing a safeguard for free speech and due process.

“The need for procedural due process only increases in the context of sexual harassment and misconduct,” says their friend-of-the-court brief. “A finding of guilt attaches a special stigma to the accused party that will stay with them well after they exit campus.”

Brooklyn College Prof. KC Johnson, who chronicles Title IX litigation, noted the 14 Republican AGs have jurisdiction over more than 300 public universities enrolling more than a million students.

Their brief “represents the highest-profile *political* support that the movement for campus due process has received,” he tweeted, calling it “a ringing indictment of unfair procedures” used by some of their own state universities.

It was filed by Ken Paxton’s office in Texas and signed by his counterparts in Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Oklahoma, South Carolina, South Dakota and Tennessee. They seek to protect the Aug. 14 implementation date of the regulation.

MORE: Obama’s Title IX rules violated First Amendment, free speech groups say

This brief represents the highest-profile *political* support that the movement for campus due process has received, and is a ringing indictment of unfair procedures from some states (TX, MS, IN) whose own public universities have sometimes employed them.https://t.co/uwjJCu6h4Y

— KC Johnson (@kcjohnson9) July 16, 2020

‘Numerous courts have recognized the constitutional deficiencies’ of old rules

The public support for the new Title IX rules come on the heels of monthslong opposition and litigation attempts from Democrats, who still favor the Obama-era rules on sexual misconduct proceedings.

The ACLU sued to block implementation of the regulation right after Secretary Betsy DeVos* published the final version in May, saying it created a “second-class standard for reports of sexual harassment and assault.” Civil liberties groups argued the lawsuit would reinstate unconstitutional practices.

Eighteen Democratic AGs proceeded to file their lawsuit the next month, asserting that the regulation will cause “immediate and irreparable harm” to their schools, communities, and states.

The Republicans disputed that. The regulation promotes the “anti-discrimination purposes of Title IX without infringing on the free exchange of ideas,” the brief says, “clarifying the types of sexual misconduct to which universities must respond for Title IX purposes.”

This corresponds with well established First Amendment and Title IX jurisprudence, they argued:

And as such, it rejects the notion that public universities can punish students for speech—no matter how offensive, disparaging, or unpopular it may be—unless it has been established that the speech prevents another student from participating in or enjoying the benefits of a recipient’s education program.

The due process rights of both accuser and accused are protected under the final regulation by mitigating against “arbitrary decision making,” the officials assert.

Prior regulations and guidance contained “constitutional and statutory deficiencies,” such as authorizing “single investigator” models that deprive accused students of “impartial decision makers.” They tolerated efforts to inhibit live hearings and cross-examination, “even when witness credibility was at issue,” and “effectively eliminated” presumption of innocence.

“Numerous courts have recognized the constitutional deficiencies of such procedures,” the brief continued.

MORE: ACLU says following SCOTUS precedent makes victims ‘second-class’

Remarkable brief defending TIX regs, from 14 states: "The need for procedural due process only increases in the context of sexual harassment and misconduct… A finding of guilt attaches a special stigma to the accused party that will stay with them well after they exit campus." pic.twitter.com/z693Dttn52

— KC Johnson (@kcjohnson9) July 16, 2020

‘Divested students of due process and waited for the courts to intervene’

The “irreparable harm” allegedly caused by the final regulation was actually self-imposed, the Republican AGs claimed.

The effective date of the regulation, cited by the Democratic AGs as too soon for universities to “redesign their disciplinary policies,” is a red herring, the brief argues. The regulation already puts into practice many of the due process protections found in the Constitution and acknowledged by the courts.

Courts identified “numerous safeguards vital to fair process and the context in which a student accused of sexual harassment is entitled to receive them” following the Obama administration’s 2011 guidance on sexual misconduct proceedings, which the new regulation supersedes.

“Plaintiffs and the academic institutions they claim to represent could have heeded the text and spirit of these rulings at any time,” the brief continues: “Instead, schools, colleges, and universities across the country divested students of due process and waited for the courts to intervene.”

It’s actually the Democratic AGs who would be responsible for “severe and irreparable harm” against students by delaying implementation of the final regulation, the Republican AGs argue.

Without proper safeguards against potential violations of due process, academic institutions will continue forcing life-changing consequences on students who aren’t allowed to fully defend themselves.

Accused students face “severe monetary and reputational costs” such as suspension and lost scholarships, housing and job opportunities, the brief argues. In the worst case scenario, students could be prevented from having a successful career.

The new rules step in “where academic institutions have failed,” knowing full well “for years that many of their disciplinary policies fall short of constitutional minimums.” Universities have instead waited for students “to force the issue through litigation,” the Republican AGs say.

*Disclosure

MORE: DeVos cites ACLU to justify Title IX regulatory changes

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