2020 Campaign Position: How should Vice President Joe Biden and other Democrats running for office handle Title IX and student misconduct?
Rolling back the new Title IX guidance is a vote-loser for Biden.
Imagine this as a potential question for the upcoming Trump-Biden presidential debates:
“Vice-president Biden, this is a college-education question, do you really want to roll back the new Title IX guidance and return to the old rules even though this may mean that Colleges, attempting to protect women, will deny men the ability to defend themselves from sexual misconduct complaints from those women?”
Inevitably, the Answer Means a Republican win:
Vice-president Biden: “Any backstepping on Title IX is unacceptable. The Biden Administration will restore the Title IX guidance for colleges, including the 2011 Dear Colleague letter, which outlined for schools how to fairly conduct Title IX proceedings.” This is the verbatim position on www.joebiden.com and one that barely appeals to the weakest part of Biden’s base: young, college educated, progressive, white, elites.
Trump: “It is a disgrace. Title IX is a kangaroo court that ruins the lives of young American men in school. Betsy did a great job for America”; an answer which, ironically, appeals to a broad base of the American electorate including suburban educated white mothers with sons in college.
Does Polling Suggest Voters’ Support the new Title IX Rules?
YES. The invaluable polling from the BUCKNELL INSTITUTE FOR PUBLIC POLICY PERCEPTIONS OF HIGHER EDUCATION SURVEY by YouGov, for July 25- August 1, 2017, found from a final dataset of 1200 respondents, that Americans across the party-spectrum overwhelmingly support the concept of Title IX as embodied in the new rules. Americans expect student equality from colleges and universities. (1).
The 2017 Bucknell poll on these exact questions shows that the new Title IX rules actually embody the electorate’s will:
“SEXUAL ASSAULT AND DUE PROCESS Students accused of crimes on college campuses should receive the same civil liberties protections from their colleges that they receive in the court system.
67% of all respondents agreed.
65% of all Democrats agreed.
77% of all Republicans agreed.
67% of all Independents agreed
Students accused of sexual assault on college campuses should have right to cross-examine their accusers.
61% of all respondents agreed.
58% of all Democrats agreed.
70% of all Republicans agreed.
60% of all Independents agreed.”
So What, if Anything, Could Democrats Running in 2020 Discuss on Title IX?
1. Title IX Fairness Requires Increasing Department of Education Funds:
• Every mom’s hands are tied while her son or daughter is either complaining or responding to a Title IX investigation: This maternal anxiety would lessen if everyone receives funding to hire professionals—lawyers and therapists. Bucknell’s data on the level of expected protections suggests as much. Since every criminal trial is funded by the state; including the public defender, so should every sexual misconduct process.
• Title IX Directors have become local law enforcement: Title IX staff needs to step up to the plate. Schools run the quasi-judicial Title IX process. Thus schools need to run Title IX professionally. To do so higher education needs and will enjoy receiving funding to train and hire men and women with a passion for justice.
2. Do not discuss restoring the 2011 Title IX guidance:
• The new rules on Title IX are here to stay: To roll back the Title IX rules that the DeVos Education Department, ironically, issued with perfect adherence to procedure, would be difficult if not impossible. The “arbitrary and capricious” standard for rolling them back is not met. (2). The only way to change them is for the Biden Education Department to issue its own new rules—a years’ long process. But campaign attacks on the DeVos rules are net votes lost for Biden.
• Cross-examination and fairness are the law of the land: Even if the Biden Education Department rolled back the Title IX rules and issued its own Title IX rules, these rules would need to maintain in-school cross-examination or they would violate several Federal Appeals Circuit decisions like Doe v. Baum (6th Cir) and Doe v. University of the Sciences (3rd Cir). (3). In-school cross-exam has become both the most fundamental right of the accused, and the most “re-traumatizing” trigger for complainants. Yet promising to stop cross-examination risks prevarication.
3. Reframe onto Forgiving Student Loans by Department of Education:
Voters agree with student loan forgiveness; a massive campaign issue for college students and recent college graduates. Polling from the April 30, 2019 Quinnipiac University National Poll - Biden Surging Among Democrats In Presidential Race, found from national land line and cell phone interviews of 1,044 voters that (4):
“Voters support 57 - 40 percent having the federal government forgive up to $50,000 in student loans for individuals in households making less than $250,000 a year;…”
Raul Jauregui
Jauregui Law Firm
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather survey of the Title IX topic. If you’re in this situation, in any way, consult a lawyer now.
As posted in Quora:
ENDNOTES:
1. The 2017 Bucknell Institute poll of perceptions of college education is available at: http://bipp.blogs.bucknell.edu/files/2017/09/BIPP-Higher-Ed-Toplines.pdf. Professor KC Johnson of Brooklyn College generously made me aware of its existence. Bucknell revisited this data in 2019 to gauge the effect of the Brett Kavanaugh scandal. Even after that process, voters across the gender spectrum still support protections for the accused under Title IX: “On the other hand, 54% of men and 46% of women believe that accused students should be allotted more protection.” See, Title IX in a Post-Kavanaugh World, Bucknell Institute for Public Policy available at: https://bipp.blogs.bucknell.edu/2019/01/23/title-ix-in-a-post-kavanaugh-world/
2. On the unusual fact that the DeVos Education Department did a good job, see, https://www.studentmisconduct.com/news/what-are-the-new-title-ix-sexual-misconduct-rules-about-and-will-schools-need-to-follow-them
3. The 6th Circuit’s Doe v. Baum decision is available at: https://www.opn.ca6.uscourts.gov/opinions.pdf/18a0200p-06.pdf while the 3rd Circuit’s Doe v. University of the Sciences decision is available at: https://law.justia.com/cases/federal/appellate-courts/ca3/19-2966/19-2966-2020-05-29.html. Importantly, Baum and USciences cover the electoral battleground states of Michigan, Ohio, and Pennsylvania. It makes little to no sense for Democrats running for office to campaign in those states arguing for an unpopular restoration of the 2011 Title IX Guidance that, if implemented, would be opposite to the local federal appellate jurisprudence.
The Quinnipiac Poll is available here: https://poll.qu.edu/national/release-detail?ReleaseID=2617