Proposed Title IX regulations would roll back essential free speech, due process protections for college students
by FIREJune 23, 2022
WASHINGTON, June 23, 2022 — Today, the Department of Education proposed new Title IX regulations that, if implemented, would gut essential free speech and due process rights for college students facing sexual misconduct allegations on campus. As required by federal law, the department must now solicit public feedback before the pending rules are finalized.
The draft regulations are a significant departure from current Title IX regulations. Unlike the current regulations, adopted in 2020 after 18 months of review, the new regulations would roll back student rights by:
- eliminating students’ right to a live hearing;
- eliminating the right to cross-examination;
- weakening students’ right to active legal representation;
- allowing a single campus bureaucrat to serve as judge and jury;
- rejecting the Supreme Court’s definition of sexual harassment in favor of a definition that threatens free speech rights;
- requiring colleges and universities to use the weak “preponderance of the evidence” standard to determine guilt, unless they use a higher standard for other alleged misconduct.
The Foundation for Individual Rights and Expression will submit its formal objections to the proposed changes in the coming weeks. Moreover, FIRE is committed to using all the resources at its disposal to ensure that core American freedoms, such as a student’s rights to free speech and due process, are not abandoned by the federal government.
“This new proposal is a non-starter for student and faculty rights,” said FIRE Legislative and Policy Director Joe Cohn. “These regulations eliminate the right to live hearings, eliminate the right to cross-examination, weaken protections for free speech, and authorize schools to deny students the right to have the active assistance of a lawyer. That’s a recipe for constitutional violations that courts are unlikely to ignore.”
“The current Title IX regulations are one of the biggest victories for student rights in memory. But as I predicted when they went into effect in 2020, our work is not over,” said FIRE Executive Director Robert Shibley. “FIRE will fight to ensure all students are afforded the free speech and due process rights that they have every right to expect as Americans.”
For over a decade, FIRE has led the fight against the erosion of free speech and due process rights on campus through the abuse of Title IX, the 1972 law that prohibits sex discrimination in federally funded educational programs. A 2011 “Dear Colleague” letter sent by the federal government to colleges and universities nationwide kicked off an era of vast Title IX overreach that led them to crack down on protected expression and eliminate vital protections — including the right to remain silent and even the right to a live hearing at all — in an effort to avoid federal investigation and the possible loss of federal funding.
The “Dear Colleague” era led to more than 600 lawsuits — many successful — against colleges for conducting allegedly unfair disciplinary processes. What’s more, a 2019 study of top schools conducted by FIRE found that college students were routinely denied even the most basic elements of a fair hearing. More than two-thirds of colleges surveyed did not even explicitly guarantee students that they would be presumed innocent until proven guilty.
In 2020, at the urging of FIRE and other civil liberties advocates, the Department of Education finally addressed this overreach when it enacted new, balanced regulations that took the rights of all students into account. The 2020 Title IX regulations provided important protections for those reporting that they were victims of sexual misconduct while still ensuring that those accused were afforded basic due process protections, such as an express presumption of innocence, impartial investigators, and the right to a live hearing with cross-examination.
The 2020 regulations also protected free speech rights by defining “sexual harassment” consistent with Supreme Court precedent. Previous federal guidance to colleges discouraged or otherwise failed to require these crucial protections.
In the years since their enactment, FIRE has defended the 2020 regulations in court against multiple legal challenges from outside groups and individuals.
The regulations proposed today, if allowed to go into effect in their current form, would undo many of the victories for student rights won in 2020. However, despite their hostility toward fair procedures, even today’s proposed regulations do not entirely roll back hard-won protections for students. Institutions are still required to provide an express presumption of innocence, which shockingly was neither required nor common until the 2020 regulations. Schools are also still required to turn over exculpatory evidence they may possess (albeit now upon request) — another long-overdue improvement made in the 2020 regulations.
The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. FIRE recognizes that colleges and universities play a vital role in preserving free thought within a free society. To this end, we place a special emphasis on defending the individual rights of students and faculty members on our nation’s campuses, including freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience.
