August 1, 2022
By Stuart Taylor, Jr., Co-founder, Princetonians for Free Speech
Old-fashioned civil liberties champions who have not paid much attention since 2010 or so might be surprised to learn that the Obama Administration used Title IX sharply to curb free speech on campus (as well as due process for students accused of sexual harassment and assault); that the next Administration reversed this trend and was much friendlier to free speech (and due process); and that the current Administration is now reverting to the Obama policies, often in the face of court decisions finding them unlawful.
Somewhat better known are the facts that in handling accusations of campus sexual assault under Title IX, the Obama and Biden Administrations and most congressional Democrats and campus bureaucrats have virtually presumed the guilt of accused students (almost all male and many or most of them innocent any crime) and slashed their due process rights. This in the face of scores of court rulings for accused students.
On the other hand, the Trump Administration, thanks to then-Education Secretary Betsy DeVos, admirably pushed for due process and fairness to accused students.
In this article, I focus on how the Biden Education Department seeks to curb free speech, in the guise of punishing sexual harassment, with the Education Department’s draft regulation on Title IX, released for public comment on June 23.
It would, as the Foundation for Individual Rights and Expression and others have explained, deep-six the speech-protective, due-process-protective Title IX rule adopted by the DeVos Education Department in 2020.
I leave it to others – a great many others – to detail how the proposed rule would “gut essential free speech and due process rights for college students facing sexual misconduct allegations” by, among other things, eliminating students’ rights to a live hearing and cross-examination and allowing a single campus bureaucrat to serve as judge and jury.
In order to roll back free speech on campus, the proposed regulation would reject the Supreme Court’s definition of sexual harassment and define it so sweepingly as to invade First Amendment rights and conflict with some First Amendment decisions by courts. This would put at risk of discipline any student who says anything on any gender or sexuality issue that upsets or makes uncomfortable anyone else on campus -- even if it has nothing to do with sexual intimacy.
The proposed rule could be seen, for example, as requiring schools and colleges to discipline any student who says that teenage boys may be more likely on average than girls to have exceptional math-science skills (as many studies have found).
Or, as lawyer-blogger Scott Greenfield warns, in this era of dangerous pronouns, the proposed Biden rule “could officially destroy a life by expulsion from college on the basis of being inadequately woke that one’s utterance offends someone.”
The Biden Administration proposal would supplant the definition of sexual harassment in the rule currently used by the Education Department, which is based on a 1999 Supreme Court decision that is far more protective of free speech.
It would also expand the biological definition of “sex” to also include “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” This could expose to discipline for sexual harassment any student who states in class or even a private setting that a person whose cells have Y (as well as X) chromosomes is a male, even if he (or she) claims to be female.
In the words of the writer Emily Yoffe, "[The Obama administration] 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.”
And in the words of the writer Hans Bader, “Right now, campus speech — such as discussion of sexual issues — is not harassment just because it is ‘pervasive’ — as all widely-held viewpoints about sex and gender are. The speech must also be ‘severe,’ such as calling a woman a gender-based epithet.
But under the Biden Administration’s proposed Title IX regulation, adds Bader, “speech would only need to be ‘pervasive’ or ‘severe’ to violate Title IX. So even viewpoints that are mildly offensive to progressive civil rights bureaucrats could contribute to a Title IX violation if they are persistent on campus. . . .And comments by different students could apparently be lumped together in finding that the comments collectively amount to harassment” -- and that schools and colleges must punish them – “even if each individual comment is mild and not intended to harass.”
The proposed rule would ban “all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.” The department plans a separate rulemaking to address Title IX’s application to women’s sports.
Looming over the Biden Administration proposal are court decrees and lawsuits or planned lawsuits that could block much of it. For example, U.S. District Judge Charles E. Atchley Jr., of Chattanooga, on July 15 blocked Education Department directives designed to extend civil rights protections to L.G.B.T.Q. students and workers. The judge acted in a lawsuit filed by some 20 Republican state attorneys general. The federal directives he enjoined are not to be confused with (but overlap with) the Biden Administration’s proposed Title IX rule.
And on June 30 U.S. District Judge David Nye of Idaho granted a preliminary injunction against the University of Idaho and ordered it to stop its no-contact orders against the three members of the Christian Legal Society, in a lawsuit that accuses the university of silencing conservative students who want to promote their views that homosexual conduct is sin. Judge Nye said the university’s actions “were designed to repress specific speech.”
Perhaps the most eloquent indictment of the gross unfairness of the procedures put in place by the Obama Administration and the campuses – with the Biden Administration about to follow suit -- is the concurrence of Second Circuit Judge Jose Cabranes in a June 2 decision in favor of a Cornell professor who was denied tenure on account of a sexual harassment allegation, by way of a process that Cabranes likened to “the infamous English Star Chamber.”
Cabranes wrote: “[C]ontemporary university procedures to adjudicate complaints under Title IX and other closely related statutes . . . signal a retreat from the foundational principle of due process, the erosion of which has been accompanied—to no one's surprise—by a decline in modern universities' protection of the open inquiry and academic freedom that has accounted for the vitality and success of American higher education.”
He concluded: “The day is surely coming — and none too soon — when the Supreme Court will be able to assess the various university procedures that undermine the freedom and fairness of the academy in favor of the politics of grievance.
“In sum: these threats to due process and academic freedom are matters of life and death for our great universities. It is incumbent upon their leaders to reverse the disturbing trend of indifference to these threats, or simple immobilization due to fear of internal constituencies of the ‘virtuous’ determined to lunge for influence or settle scores against outspoken colleagues.”