Introduction

Title IX of the Higher Education Amendments of 1972 bars federally funded colleges and universities from discriminating on the basis of sex. But over the years, the Department of Education (ED) adopted an expansive view of “discrimination” that made colleges responsible for regulating every sexually charged remark by students or professors. The Obama administration ED forced colleges to take on investigations better handled by trained law enforcement, and in the course of these investigations, colleges have abrogated due process rights of accused students and faculty members.

Under the Trump administration, the ED formally rescinded the Obama-era regulations and issued new regulations in their place. These reforms are only the beginning of needed legislation to ensure that Title IX protects due process rights for both the accuser and accused.

Title IX itself is distinct from the Higher Education Act, but there are still measures Congress can take to protect due process.

Policy Recommendations

Link Federal Student Loan Eligibility to Due Process Protection

Congress should make due process protection a condition of Title IV eligibility.

Legislative Language: Add to 20 USC §1087d.(a) (Participation agreements) and to 20 USC §1087cc. (Agreements with institutions of higher education) a subsection mandating that, on penalty of losing eligibility for Title IV federal student aid, colleges and universities must:

1. establish adjudication procedures for students and faculty with strict adherence to due process protections, including but not limited to: the presumption of innocence, the clear and convincing evidence standard, the right to counsel, the right to know what one is charged with, the right to know of all existing allegations received by college administrators, the right to access all evidence including exculpatory evidence, the right to clearly and precisely worded definitions of misconduct that follow those used in our judicial system, the right to clearly defined statutes of limitations, the right to live hearings where both accusers and witnesses can be questioned (cross-examined), and the right to speak publicly about any case;
2. refer all reported felonies immediately to the local police;
3. establish “double jeopardy” protections in all adjudication procedures;
4. draft and circulate a written charter of enumerated due process rights guaranteed by the college or university to all students and faculty;
5. inform all students and employees of their due process rights; and
6. require the Board of Trustees to certify annually either 1) that the college or university has respected all faculty and student due process rights; or 2) that the college or university has violated faculty and/or student due process rights, and that it has begun work to provide restitution for that violation, and to ensure that no such violation recurs.

Congress should introduce new protections for due process not only via the Higher Education Act, as per our suggestions above, but also through separate legislation.

Require Title IX Responsible Employees to Have Criminal Defense Experience

Congress should require that all Title IX Responsible Employees must have five years’ experience in criminal defense.

Legislative Language: Amend 20 U.S.C. § 1681.Sex to require that

1. any employee deemed a “Title IX Responsible Employee” must have been employed for at least five years in a job where at least 50% of hours worked consisted of criminal defense, and who has substantial courtroom experience.