While President Joe Biden recently announced a review of the DeVos changes, we must go much farther: Congress itself must amend the law to reclaim its original mandate.
The debate over "Title IX," the landmark federal law prohibiting sex discrimination in any school or educational program that receives federal funding, reached a fever pitch during the Trump administration.
The law serves as the main tool to hold perpetrators of sexual harassment and assault on college campuses accountable, but in 2017 former Education Secretary Betsy DeVos, issued new guidance on the statute in order to supposedly secure due process rights for those accused of wrongdoing.
These changes were an unnecessary reaction to overblown claims of false accusations and due process violations, and imposed unfair burdens of proof on survivors, deprived them of privacy and created an environment that discourages sex crime reporting.
While President Joe Biden recently announced a review of the DeVos changes, we must go much farther: Congress itself must amend the law to reclaim its original mandate.
DeVos' actions were part of ongoing erosion of Title IX, driven by federal judicial decisions for more than 20 years. It will likely get worse with the increasing influence of federal judges like Justice Amy Coney Barrett, who have acted to restrict the law despite its broad mandate, while manufacturing rights of the accused that are nowhere in the statute.
The U.S. Supreme Court recognized over 40 years ago that Congress intended that Title IX would provide "effective protection against" sex discrimination. But thanks to the 1999 U.S. Supreme Court decision, Davis v. Monroe County Board of Education, federal courts have eradicated the notion that schools must be effective in eliminating sex discrimination in individual cases. That decision allowed schools to respond to wrongdoing in a manner that is not "clearly unreasonable." The decision left open for interpretation what constitutes a "clearly unreasonable" response, even allowing for what is "reasonable" to be decided by judges, thus depriving aggrieved students of a jury trial.
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Originally published by Daily Business Review, April 01, 2021
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