New York, NY, January 11, 2021 — The National Association of Scholars (NAS) has filed an amicus curiae brief to support the new Title IX regulations (hereafter “the Rule”) in the United States District Court for the District of Columbia in Commonwealth of Pennsylvania, et al. v. Elisabeth B. DeVos. This case is one of four federal court challenges filed both to delay the Rule’s effective date and to invalidate it as unlawful. The Rule requires due process protections for those accused of Title IX violations, including the presumption of innocence and the right to witness cross examination, as well as supportive measures for complainants.
The effort to delay failed, allowing the Rule to take effect as planned on August 14, 2020. Court complaints in Maryland and New York were defeated, while those in Massachusetts and the District of Columbia remain pending.
The NAS brief reminds the court that the Rule restores a consistent and objective standard of denied educational access for “hostile environment” conduct that triggers Title IX; that standard was first articulated by the United States Supreme Court in the 1999 case, Davis v. Monroe.
“At present, campus Title IX policies are confused, misleading and ‘all over the map’ regarding what Title IX actually prohibits,” the brief points out. The Rule corrects this by restoring the Davis standard that access to education is, and always has been, the purpose of Title IX. NAS Policy Director Teresa R. Manning adds, this “brings consistency to Title IX administration from campus to campus.”
Second, the brief argues that the Rule's provision defining all sexual assault and sexual violence as intrinsically discriminatory should be eliminated. This provision removes objective standards by way of administrative overreach, or “law by redefinition,” inviting Title IX offices to exercise jurisdiction they were not intended to have — over crimes — and to neglect jurisdiction they do have — over educational access.
“NAS has long supported Title IX as a guarantee of equal access to education regardless of one’s sex. NAS does not support, however, the transformation of Title IX from a civil rights law into a sex crimes law — it was never intended to apply to crimes, and Title IX staff are not qualified to address crimes.” The brief concludes that, if this provision remains, Title IX officials will continue to “view themselves as sex monitors … rather than education monitors and they will have almost limitless and therefore improper jurisdiction.”
Once this provision is severed, however, the Rule will “go a long way in restoring Title IX to its original intent of educational access and protecting the rights of all, both accusers and accused,” said Manning.
NAS is a network of scholars and citizens united by a commitment to academic freedom, disinterested scholarship, and excellence in American higher education. Membership in NAS is open to all who share a commitment to these broad principles. NAS publishes a journal and has state and regional affiliates. Visit NAS at www.nas.org.
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