5 Ways Biden’s New Title IX Rules Will Eviscerate Due Process on Campus

Today, on the 50th anniversary of Title IX’s implementation, the federal law that prohibits sex-based discrimination in education is getting a radical overhaul that will gut critical due process protections for students accused of sexual misconduct.

Education Secretary Miguel Cardona touted the new proposals as necessary revisions to Trump-era rules that reasserted the need for colleges and universities to treat both parties to a sexual misconduct dispute fairly and equally. The Biden administration has apparently embraced the idea—one promoted by many progressive victims’ advocacy groups—that the rules propagated by previous Education Secretary Betsy DeVos made it too difficult to file sexual misconduct claims; Cardona’s proposals would substantially revert Title IX compliance to the Obama-era standards, under which hundreds of students allege that they were wrongfully expelled from college following adjudication procedures that were manifestly unfair.

“Our goal was to give full effect to the law’s reach and to deliver on its promise to prevent all students from sex-based harassment,” said Cardona in a statement. “Our proposed changes would fully protect students from all forms of sex discrimination, instead of limiting some protections to sexual harassment alone, and make those protections include discrimination based on sexual orientation and gender identity.”

Here are five revisions to Title IX sexual misconduct procedures under the new rules:

1. The definition of sexual harassment is substantially broadened. The DeVos rules had established two types of sexual harassment: “quid pro quo” harassment, in which an individual was asked to perform sexual favors in exchange for employment or some other favor; and “unwelcome conduct.” Quid pro quo harassment only had to occur once to count as harassment, but unwelcome conduct harassment had to be “so severe, pervasive, and objectively offensive that it effectively denies a person equal access” to their education—a definition that came straight out of case law (Davis v. Monroe County Board of Education in particular).

Under the new rules, the bar is much lower: Cardona would define unwelcome conduct harassment as “conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate” in their education. This would open the door to Title IX investigations of speech that is sexual in