US education watchdog warns of ‘shadow justice system’ if Biden reverses Trump-era due process rules for campus sexual misconduct

A Biden nominee to the education department would signal the rolling back of Trump-era protections to students accused of sexual misconduct on campuses, an education watchdog has warned.

In 2020, former Education Secretary Betsy DeVos enacted new regulations that “bolstered due process at colleges” under Title IX – a 1972 law that prohibits educational discrimination on the basis of sex. The new rules direct colleges to presume an accused student’s innocence until proven guilty.

Now, the Foundation for Individual Rights in Education (FIRE) is cautioning that these protections would be undone if Catherine Lhamon, President Joe Biden’s nominee as the department’s assistant secretary for civil rights, is confirmed to the role by Congress.

“We were finally seeing student rights moving in the right direction, but Catherine Lhamon’s nomination just shows how threatened the progress we’ve made is,” FIRE Executive Director Robert Shibley said in a statement.

Shibley added that Lhamon’s “history and rhetoric” indicate she would encourage a “patently unfair shadow justice system” which deprives students of the right to due process.

Reacting to the regulations brought in by DeVos last year, Lhamon tweeted at the time that the rules would take “us back to the bad old days... when it was permissible to rape and sexually harass students with impunity.”

During her Senate confirmation hearing earlier this month, she doubled down on that criticism and said the “regulation had weakened the intent of Title IX that Congress wrote.” But Lhamon claimed that she would enforce the law despite her opinion of it.

In a recent report, titled ‘Spotlight on Due Process 2020-2021,’ FIRE conducted a review of some 53 of the country’s top colleges to see how many adhered to “fundamental procedural safeguards” required by the DeVos regulations – such as the presumption of innocence, the right to a meaningful hearing with the ability to cross-examine one’s accuser and the right to impartial fact-finding.

The results revealed that 85% of schools included in the report “scored noticeably higher” in Title IX sexual misconduct policies than other policies, “demonstrating the positive effect of the regulations on due process” in these cases.

Nearly two-thirds of schools (64%) now have a Title IX policy that guarantees a “meaningful hearing,” in which “each party may see and hear the evidence being presented to fact-finders by the opposing party, before a finding of responsibility.”

However, in her now-rescinded 2014 guidance to universities, Lhamon had said that because a “Title IX investigation will never result in incarceration of an individual,” these cases were “not required” to have “the same procedural protections and legal standards” that govern criminal proceedings.

The 2014 directive “strongly discouraged” schools from “allowing the parties to personally question or cross-examine each other during a hearing on alleged sexual violence” on the grounds that “allowing an alleged perpetrator to question a complainant directly may be traumatic or intimidating, and may perpetuate a hostile environment” for the victim.

In March, Biden – who has previously said the rules “shame and silence survivors” – signed an executive order that called for a 100-day review to “consider suspending, revising, or rescinding” any Trump-era rules that are “inconsistent” with the policies of his administration.

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