Judge

José Cabranes

of the Second U.S. Circuit Court of Appeals fired off a blistering critique of how colleges and universities adjudicated sexual-misconduct allegations during the Obama administration. Thanks to “regulatory diktats” imposed by the Department of Education in 2011, Judge Cabranes wrote in a concurring opinion earlier this month, campus procedures were so devoid of basic due-process protections that they “compared unfavorably to those of the infamous English Star Chamber.”

The Biden administration is bringing back these sham hearings. On Thursday the Education Department’s Office for Civil Rights proposed new regulations governing how colleges and universities that receive federal funds—which is nearly all of them—must respond to allegations of sexual misconduct under Title IX, which prohibits sex discrimination. The new regulations would eliminate or weaken basic procedural protections for students accused of sexual misconduct.

The right to a live hearing? Erased. Cross-examination? Unrecognizable. The standard of proof to determine guilt? Weakened. These fundamental safeguards are protected by the current regulations, which took effect in 2020 and reversed the 2011 guidance.

By proposing to jettison fair proceedings, the Education Department is setting colleges and universities on a collision course with the courts. Judge Cabranes’s sharp critique was no outlier. Over the past decade, judges nationwide have issued more than 200 rulings favorable to students accused of sexual misconduct, chastising institutions such as Cornell, Brandeis and George Mason University for rushing to judgment in rigged proceedings designed to appease the federal government.

In 2017 the Sixth Circuit held that the University of Cincinnati’s failure to allow for cross-examination in a case turning on credibility was “disturbing” and “a denial of due process.” In 2020 a federal district court found that the University of Michigan’s refusal to allow an accused student a hearing and a chance to have an adviser question his accuser was a violation of “clearly established constitutional rights.”

Defying these and other rulings, the new regulations propose to eliminate accused students’ rights to cross-examination and live hearings. Instead, the Education Department would allow institutions to reintroduce the infamous “single investigator” model of campus justice, whereby a lone bureaucrat serves as prosecutor, judge and jury.

The Biden administration’s rights rollback isn’t surprising. The Office for Civil Rights is again led by

Catherine Lhamon,

who held the same post during President Obama’s second term. When Education Secretary

Betsy DeVos

issued the current regulations in 2020, Ms. Lhamon tweeted that the protection of due process was a return “to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.” It should have been disqualifying to suggest that providing accused students with the right to a meaningful opportunity to ask questions of their accusers is the equivalent of legalizing rape. But it’s tough to strip people of basic rights without fanning moral panic. Questioned by senators about her statement during her confirmation hearing last July, Ms. Lhamon stood by it without apology. The Senate confirmed her on party lines, with Vice President

Kamala Harris

casting the deciding vote.

Supporters will attempt to justify the abandonment of core procedural safeguards by arguing that sexual assault is so prevalent on campus that this drastic action is justified, often citing studies claiming that 1 in 5 or even 1 in 4 women on campus are victims of sexual assault. Such numbers often reflect definitions of assault far broader than one would expect. A Department of Justice study using narrower definitions found that 6 in 1,000 female students were victims of sexual assault—a rate lower than that of nonstudents. But even if 1 in 4 figure were true, civil liberties require constant vigilance, especially when confronting allegations of serious misconduct. Justice requires fundamentally fair proceedings in each and every case.

By rolling back rights for students nationwide, the Biden administration is abandoning core American principles. Protecting due process shouldn’t be controversial. Fundamental fairness shouldn’t be a partisan concern. But instead of working on solutions that will last beyond a presidency, Ms. Lhamon’s Office for Civil Rights is playing to the partisan base.

Like Judge Cabranes and courts across the country, Americans won’t accept fundamentally unfair campus hearings that railroad the accused. Title IX policies can and must be fair to both parties: Colleges can’t be permitted to sweep sexual-misconduct allegations under the rug or ignore basic procedural protections.

The Education Department must make significant changes to its proposed regulations before they are finalized. If it doesn’t, these regulations will be short-lived—either replaced by the next Republican administration, or successfully challenged in court.

Mr. Cohn is legislative and policy director for the Foundation for Individual Rights and Expression.

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