Yale students take off their clothes and cheer during a game against Harvard. (Adam Glanzman via Getty Images)

Biden's Sex Police

The White Houses's new regulations will gut due-process rights for college students accused of sexual misconduct.

From the start, we at Common Sense have been very lucky to have a secret weapon. Her name is Emily Yoffe.

Newsrooms cannot function without people with good editorial judgment, and Emily has that in spades. Which makes sense, given that for almost a decade she was the best advice columnist in the country. You might know Emily as Slate’s Dear Prudence, and remember her common sensical, empathic and often hilarious advice. Emily has also written for publications including The Washington Post, The New York Times, The Atlantic, Texas Monthly and more.

But those names aren’t what makes Emily such an important reporter and writer. It’s her independent mind and her willingness to slaughter sacred cows for the sake of the truth.

Nowhere has that gift been more more apparent than on the knotty subject of Title IX. So last week, when the Biden administration released its new Title IX regulations, which have enormous ramifications for due process on college campuses, I turned to Emily to decipher what it all meant. I also highly recommend Emily’s previous reporting on this subject, which we link to at the bottom of her essay.

— BW

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Joe Biden has fulfilled one of the first promises he made upon becoming president. His administration has just announced a comprehensive set of regulations—701 pages worth—that will gut due-process rights for college students accused of sexual misconduct. 

Apparently, Biden learned nothing from going through his own sexual assault accusation crucible. 

During his vice presidency, Joe Biden was the Obama administration’s point man for a major domestic initiative: ending sexual assault on campus. There is no question bad, sometimes criminal, sexual behavior occurs on campus. Eliminating it is a worthy, if elusive, goal. But the Obama-Biden mandate expanded the definition of sexual misconduct so broadly that jokes, flirting, or “any unwelcome conduct of a sexual nature,” could be punishable offenses. 

The Obama administration set out to change campus culture, and it did. But in doing so, it undermined women, demonized men, and diverted vast resources away from education. Under rules promulgated by Betsy DeVos, Secretary of Education under Trump, many of these policies were rolled back. The Biden administration now plans to restore much of this. 

Male college students (the accusers were almost always female, the accused male) were subjected to quasi-criminal proceedings on campus in which many were never told explicitly what they had done wrong and were unable to mount a defense. An adverse finding could end an education and foreclose many career possibilities. 

Biden traveled the country, describing campuses as places where male classmates put young women in relentless danger (“This is a toxin on college campuses”), and where indifferent campus officials disparaged the women willing to report assault. But Biden's portrait was at odds with the way the majority of such cases unfold—often beginning as consensual encounters, then later ending up in dispute, frequently due in part to alcohol, miscommunication, and hurt feelings. 

In numerous college speeches, Biden declared alarming, inflammatory, and dubious statistics on the frequency of campus assault. Biden advocated that all sexual encounters on campus be governed by “affirmative consent.” This means that each touch, each time, even between established partners, requires explicit—preferably verbal, preferably enthusiastic—agreement. Affirmative consent was adopted widely on campuses, and became a law governing student behavior in California, Connecticut, and New York. 

Then Donald Trump was elected president, and Betsy DeVos, decided to reform what the Obama administration had done. In one of the most uncharacteristic acts of that chaotic presidency, DeVos went through the lengthy and burdensome process of writing actual regulations (the Obama administration had only issued “guidance”). The rules she released were, on balance, careful and thorough, providing necessary protections for the rights of both accuser and accused. I spent several years reporting on what was unfolding on campuses, and I wrote at the time that the DeVos regulations were an example of an immoral administration doing the moral thing. (See, for example, here and here.)

The DeVos rules went into effect in August of 2020, in the midst of campus covid shutdowns, so they have hardly had a chance to be tested. Now they will be struck. They will be replaced by some of the most pernicious procedures of the Obama era. (These dueling Department of Education regulations come under the aegis of Title IX, the fifty-year old federal law that prohibits sex discrimination in education.)

The new rules recommend a return to a “single investigator” model that was barred under the DeVos reform. This means one administrator can act as detective, prosecutor, judge, and jury on a Title IX complaint. The new rules also undo many of the procedural protections for the accused—including the right to see all the evidence, inculpatory and exculpatory, gathered against him. “It’s an evisceration of the procedural protections given to the accused,” says historian KC Johnson, co-author of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.

Under the DeVos rules, adjudication of a formal complaint required a live hearing be held that included cross examination. The Biden administration lifts this obligation. The Biden rules also call for a return to investigations initiated by third parties, even if based on rumors or misunderstandings, in which male students can be subjected to Title IX proceedings over the objection of their female partners. (Robby Soave at Reason has a good summary of the Biden proposals.) 

“It’s a document that validates all of the concerns we had about due process and free speech being on the chopping block,” says Joe Cohn, legislative and policy director at The Foundation for Individual Rights and Expression.  He adds that the administration is giving schools the blessing of the Department of Education “to cut many corners that are essential for fundamental fairness.”

As vice president, Biden made clear that campuses were just the first stop in an effort to remake throughout society how males and females interact. He said in a 2015 speech at Syracuse University about sexual misconduct, “We need a fundamental change in our culture. And the quickest place to change culture is to change it on the campuses of America.” 

Then just before entering the 2020 presidential race, Joe Biden was accused by several women of unwanted touching and hair sniffing. Biden didn’t quite apologize, but explained that all his physical contacts were well-meant gestures of friendship and support. This was followed by a more serious allegation of assault, a charge he credibly denied. But a male student accused of such acts under Obama administration campus policies would have faced potential expulsion and been subjected to a grueling investigation, often conducted with a presumption of guilt. A lack of intent to harm, as Biden claimed for himself, would provide no defense—the administration’s policy demanded elevating the subjective feelings of the complainant.

One frustrated Title IX coordinator told me she sometimes thought of her job as running “The Break Up Office.” She said many young people lacked the skills to navigate relationships themselves, and often didn’t want to. Why should they? Instead of focusing on punishing students who commit truly bad acts and aiding their victims, campus administrators transmitted the message that recasting any sexual experience as malign, and then reporting it to school authorities, is an act of bravery.

Young men suspended or expelled began filing civil suits against their schools for unfair treatment. These Title IX cases became a new legal specialty—to date, around 675 such suits have been filed in federal and state courts, says KC Johnson. Of those that have worked their way through the system, judges have issued hundreds of rulings deploring the star chambers and kangaroo courts to which these male students were subjected. One U.S. District court judge wrote that an accused student’s treatment was “closer to Salem 1692 than Boston, 2015.” An appellate court found that the treatment of an accused student at Purdue was “fundamentally unfair” and that “a hearing must be a real one, not a sham or pretense.” 

But no matter what the new regulations demand, it is likely that at the end of the Biden administration, the president will have to concede that he failed to make a dent in accusations of sexual misconduct on campus. This won’t be because campus administrators are indifferent to mass criminal activity by male students. It will be, in large part, because of the bureaucratic expansion the Obama administration instigated. They helped establish an industry of Title IX officials, investigators, lawyers, and consultants. 

It’s a busy field with an expanding portfolio, because anything related to gender that upsets anyone on campus can result in a report to the Title IX office. The Biden administration is going to make it even busier. A fact sheet on the proposed regulations states, “Title IX’s protections against discrimination based on sex apply to sexual orientation and gender identity.” 

This means that the already fraught issue of how students identify themselves, and how they feel about how others identify them, will become increasing fodder for Title IX investigations. Ithaca College last year issued lengthy instructions for faculty on the perils of getting into a gender quagmire when calling on students in class. For example: “Pronouns are not included on rosters, and we encourage you to forego using pronouns and instead refer to all students by their chosen name until and unless they choose to share a pronoun.” 

It was widely expected, based on administration pronouncements, that the new Title IX regulations would declare that students who are transgender women—that is, biological males who identify as female—would be allowed to compete on girls’ and women’s sports teams. Secretary of Education Miguel Cardona said in an interview on ESPN in June that it was a “non-negotiable” that transgender students “should have the same opportunity to be part of a team.” 

But on this explosive issue, the Biden administration punted. They now promise that at some future date they will address the question of transgender athletes—a date presumably after the mid-term elections. Administration officials must have looked at the polling showing that, across the political spectrum, the public does not want to see biological males competing against their daughters. A recent Washington Post poll found that even “as an increasing share of Americans report familiarity with and tolerance for transgender people, most oppose allowing transgender female athletes to compete against other women at the professional, college and high school level.” (Recently, FINA, the world governing body of swimming, banned competitors who have gone through male puberty from participating on women’s teams.)

Title IX campus officials are often highly-paid people with exceptional power. Harvard boasts more than 50 Title IX coordinators, more than 80 percent of them women. These careers depend on a steady stream of complaints. Too many people have too much invested in making campus sexual politics a problem that can’t be solved. 

Then there is human nature itself. Young men and women are going to engage in sexual exploration. Sometimes it’s going to go badly. In many cases, no matter how many hundreds of pages of regulations are churned out by the federal government, turning to Title IX bureaucrats is not going to make things better.

Read Emily Yoffe’s groundbreaking reporting on Title IX:

The Uncomfortable Truth About Campus Rape Policy.

The Bad Science Behind Campus Response to Sexual Assault

The Question of Race in Campus Sexual Assault Cases.

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